Forward
These are the Congressional debates leading to the passage in Congress and the subsequent submission to the several states of what would become the fourteenth amendment to the United States Constitution. The link preceding the Table of Contents may be used to view the actual images used in the processing of this text. Those images are readable but not searchable. Every effort has been made to ensure the accuracy of this text. With such a volume of material some errors are inevitable. If you find errors, please notify me at Duetmaster<at>aol-dot-com. This is electronic version 1.0. When sufficient changes are found necessary I will update this document and change the version number. The purpose of making this document was simply to facilitate a greater understanding of the intent of those who implemented this change to our Constitution. I will not give my views on this subject as I wish everyone reading this material to come to their own carefully considered conclusions. I will state, however, that the Senate debates are much more informative than those in the House. If your time is limited I would recommend skipping the House debates. There is some interesting information in the House debates concerning the constitutional issues of the presidential actions during reconstruction but not so much directly related to the meaning of the amendment itself. I have included three speeches from the Appendix to the Congressional Globe. All three were actually given before Congress and thus I felt necessary to include them. There are other speeches recorded in the Appendix of the Congressional Globe but as far as I know none of these other speeches were actually given before Congress and would thus have had little to no effect in the debates. This is the reason I excluded them.

1866 [April 30]

THE CONGRESSIONAL GLOBE

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REPORTS OF COMMITTEES. Mr. FESSENDEN. The joint committee, so called, on reconstruction have directed me to report, first, a joint resolution proposing an amendment to the Constitution of the United States; second, a bill to provide for restoring to the States lately in insurrection their full political rights; third, a bill declaring certain persons ineligible to office under the Government of the United States. They directed me, further, in reporting this resolution and bills, to say that it was the intention of the committee to accompany them with an extended report of their reasons, and the grounds upon which they report them. Unfortunately, however. such has been the situation of the committee, relying upon the chairman, who has been unable to attend to it on account of illness, that this report has not been drawn; and perhaps we may ask leave to submit the report hereafter in connection with the bills and resolution now reported. It was thought advisable, as it was so late in the session, not to withhold the measures proposed for action for the reason I have stated. It is very possible that the report may be made hereafter if it shall please the Semite to receive it. The joint resolution (S. R. No. 78) proposing an amendment to the Constitution of the United States; the bill (S. No. 292) to provide for restoring to the States lately in insurrection their full political rights; and the bill (S. No. 293) declaring certain persons ineligible to office under the Government of the United States, were severally read a first time by their titles, and passed to a second reading. 2332 THE CONGRESSIONAL GLOBE May 2, RECONSTRUCTION. Mr. WILLIAMS. I ask leave to introduce at this time, for the purpose of having it printed, an amendment to the bill (S. No. 292) to provide for restoring to the States lately in insurrection their full political rights. Mr. POMEROY. I ask for the reading of the amendment. The PRESIDENT pro tempore. It will be read if there be no objection. The Secretary read the amendment, which was to strike out section one of the bill and to insert the following in lieu thereof: That whenever any one of the States lately in insurrection shall ratify the above proposed amendment, as required by the Constitution of the United States, and shall conform its constitution and laws thereto, the Senators and Representatives from such State, after the 4th day of March, 1867, if found duly elected and qualified, shall, upon taking the required oaths, be admitted into Congress: Provided, That Senators and Representatives from Tennessee and Arkansas, respectively. shall be admitted, if elected and qualified as aforesaid, when either of said States shall ratify, as aforesaid, said proposed amendment. Mr. WILLIAMS. Mr. President, I beg permission to say that this amendment embodies the views I presented to the committee, and I introduce it at this time so that it may be printed and examined before the Senate proceeds to the consideration of the bill. I invite attention to the fact that by this amendment Senators and Representatives from the so-called confederate States are not allowed to take their seats in Congress until the 4th day of March, 1867, with the exception of Tennessee and Arkansas, giving the loyal States an opportunity, if they desire so to do, to make the proposed constitutional amendment a part of the Constitution of the United States before that time. Should the loyal States adopt that amendment, I have little doubt that it would be adopted by enough of the other States to make it a part of the Constitution before the 4th of March, 1867; but if the loyal States should refuse to adopt the amendment and say that they do not want the guarantees and security for which it provides, then, so far as I am advised at present, I can see no good reason for refusing any longer to receive representation from these insurgent States. Tennessee and Arkansas are made exceptions. Their Senators and Representatives are to be received as soon as they ratify this constitutional amendment; and I believe, from the condition of their people and the character of their constitutions and laws, that they are entitled to a precedence over the other States that have been in rebellion. I believe that this amendment is better in all respects than the original section; but if the Senate, after consideration, decides otherwise, I shall cheerfully acquiesce in its judgment. The PRESIDENT pro tempore. The order to print will be entered if there be no objection. Mr. DIXON. Mr. President, I ask leave to give notice of my intention to offer, by way of amendment to the bill and resolutions reported by the joint committee on reconstruction, and as a substitute therefor, the following joint resolution: Resolved by the Senate and House of Representatives of the United Sates of America in Congress

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assembled, That the interests of peace and the interests of the Union require the admission of every State to its share in public legislation whenever it presents itself, not only in an attitude of loyalty and harmony. but in the persons of representatives whose loyalty cannot be questioned under any constitutional or legal test. I ask the consent of the Senate to say a few words in explanation of my views on the subject. What the country expected from Congress was a practical scheme for hastening the reestablishment of all the States in their full constitutional relations. This report produces a plan which must inevitably put off this end, so strongly desired and demanded. Does any one believe that the southern States will accept the proposed constitutional amendment? Certainly they will decline. They will say, "Let us see what the next elections in the North develop. This Congress may recommend the amendment; the next Congress, which is to be chosen in the fall of the present year, and which may meet on the 5th of March, 1867, may be of a different mind. It may repeal all that this Congress has enacted; we had better wait." The "restoration of the States to their practical relations in the Union," as Mr. Lincoln happily phrased it, is therefore put off, if this report is accepted, for at least another year; and the practical result of the labors of the reconstruction committee will be to have made up a platform on which those who choose to stand upon it may go before the country at the fall election. That is all; and in our judgment that is not enough to satisfy the country. It is hardly worth while to discuss the merits of measures which to be valid most be accepted by communities which are sure to reject them; but we may remark that it is not probable so heavily taxed and so poor a people as those of the southern States will assume the payment of the enormous and wastefully contracted rebel debt, and that no party would ever dare to go before the people of this country with a proposition for the United States to assume this debt, whose certificates are held chiefly by foreign speculators upon our national ruin. Further, that it is scarcely probable the people who have a majority in the South will voluntarily disfranchise themselves; and that the extremes to which partisan passions have been inflamed in Tennessee by the disfranchisement of the greater part of the population there, does not encourage practical men to look for the fruits of peace from such a policy enforced elsewhere. Even the reconstruction committee acknowledge that "it is expedient that the States lately in insurrection should, at the earliest day consistent with the future peace and safety of the Union, be restored to full participation in all political rights." Now, what have we already to "secure future peace and safety?" In the first place, we have the civil rights act, under which any citizen who is denied justice by local or State courts is empowered to appeal to the United States court, which is commanded, with all its machinery, to interfere in his behalf; and if necessary, to use the military power of the United States to secure him justice. Surely no citizen need suffer wrong while this act remains. In the next place, we have a form of oath, prescribed by Congress; which makes it impossible for any one who voluntarily engaged in rebellion to enter Congress or to hold any Federal office without committing perjury, for which he may and ought to be indicted and punished. Finally, we have the Freedmen's Bureau for a whole year, during which, with a wise and conciliatory policy, we may hope the labor question in the South will assume something of its normal condition. But let us not forget, on the other hand, the dangers which attend impracticable measures. Suppose, going before the people on this platform, built by the congressional committee, we are beaten. In that event we may be sure that the next Congress will not only refuse to make the demands which this one makes, but it will most probably repeal the civil rights act and the test oath; and thus our own imprudence will have sacrificed the great objects we have already gained. The amendment proposed is right enough, if the reconstruction committee can get any southern State to accept it. But unless they do so, it is of course only a shot in the air, which may be right and true, but will hit nowhere—unless indeed it falls upon the heads of the gunners. Is it not far wiser for Congress to make sure of what it has done; to cry "Enough for this time;" to be content that it has secured the supremacy of law and justice in all our territory; and to admit at once to their seats all Representatives and Senators who can take the prescribed oaths? One Congress cannot bring about the millennium; there are years to come in which we may all join upon a platform of larger liberty, and argue the questions and urge the reforms which still remain. For this time we have reason to be content; for we have put down armed resistance to the laws, and Congress has given us, in the civil rights act, a guarantee for free speech in every part of the Union. It is our own fault if, having thus secured the right to argue, we do not enlighten prejudice and mere opposition, and show that equal liberty is the best for all. What I have read seems to me so wise and just, that I have adopted it as the best expression which I can make of my own views. It is the leading editorial article in the New York Evening Post of May 1, a journal which

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certainly is not excelled in ability, patriotism, and influence by any newspaper in this country. Coming from such a source. I cannot but hope that these wise, calm, and statesmanlike views may have some influence even in this body, as they certainly will have among the intelligent people of the United States. They express, in my judgment, the calm and resolute convictions of thinking men, and will, so soon as public opinion can legitimately declare itself, take the form and be clothed with the authority of public law. Leave was granted to introduce the joint resolution (S. R. No. 81) providing for the representation of the several States in the Congress of the United States; which was read twice by its title. Mr. FESSENDEN. I wish to make a single remark upon the proposition of the honorable Senator from Connecticut. He thinks that the remarks which he read from the New York Evening Post are so very wise, so very just, that he has some hope to use his own language, that they may not be without their effect even upon the members of this body; thus, I suppose, intending to intimate that the last place where wise and just views could be expected to have any effect would be upon the members of this body. Sir, we have not given ourselves over to the keeping of the honorable Senator from Connecticut, or those who act with him. We do not pretend to any very particular wisdom or any particular sense of justice; but we who were on the joint committee of fifteen, and who are most immediately touched by the remark, feel that at any rate we have tried to do our duty. We have been in session a considerable length of time but not longer than we deemed it absolutely necessary in order to reach a conclusion, and in reaching that conclusion we have been obliged to take into consideration a great many things: first, what it would be wise and just to do, and next what, if it is wise and just, we can do; what would be acceptable in the first place to Congress, and in the next place what would be acceptable to the people. Unquestionably in the committee there was very considerable difference of opinion. That difference of opinion had to be reconciled. I do not suppose that the scheme as presented would be exactly in all particulars what would suit perhaps a large number; but the question is one beyond mere personal opinion, and mere adherence to personal opinion or personal feeling either; and the committee, after much deliberation, came to the conclusion that its duty was to agree upon that which seemed to be the best 1866 THE CONGRESSIONAL GLOBE 2333 scheme with regard to reconstruction upon which they could come to a unanimous or nearly unanimous agreement. The proposition made by the honorable Senator from Oregon this morning would indicate, for instance, that he is not exactly satisfied with the result to which the committee came. I really, with all respect to my friend from Oregon, beg leave to say that when a committee after great deliberation has come to a conclusion upon a subject which has been assented to and reported, at any rate the members of the committee should abstain from pressing individual views in advance of the general action of the body to which the report has been made, because it has a tendency to weaken the effect of the report itself. I accede to what has been said by the honorable Senator from Connecticut with regard to the eminent standing of the press from which he has read; but, eminent as it is, I think it is not immodest on the part of the committee of fifteen, selected with very considerable care, and, with one exception, perhaps, composed of gentlemen eminently fitted for the position which was assigned to them, to suppose that after months of deliberation, after great study and reflection, after careful examination of the evidence before them, not only as to what was wise to do, but as to what could be done, the united opinions of a very large majority of them might be supposed to come about as near the right as the opinion of an individual who may happen to write in the columns of a newspaper. I acknowledge, as a general rule, that the editor of a newspaper knows by intuition far more of the state of the country and what is wise to be done, no matter what his age, or what his position, than Congress can possibly know; but I think, at any rate, a little faith should be given to a committee of Congress, so large as this committee, and to Congress itself, devoting itself carefully to the study of the great questions on which it proposes to act. I cannot agree with my honorable friend from Connecticut, that because the opinions which he read happen to appear in a press of character they are therefore so conclusive as at once to overturn all the conclusions to which, after much deliberation, the committee have arrived. At any rate I shall beg leave to ask, when the proper time comes, for the careful consideration of the Senate of all these important questions; and having no pride of opinion on the subject, if Congress shall come to the conclusion that the scheme which has been presented needs amendment and alteration, I shall submit with perfect willingness and perfect contentment, in the hope that something wiser and better will be reached; but until we come to the discussion I am unwilling to admit, even upon the authority of the New York Evening Post, that what we have done cannot be acceptable to the people of the United States. Mr. DIXON. I suppose the Senator from Maine did not intend, in his opening remarks, to question my right to

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offer the amendment. Mr. FESSENDEN. Not at all; I only suggested to the Senator that when he stated that the wisdom of those remarks of the Post might, he hoped, have some effect even upon this body, it was rather an intimation that this body could not be expected to act wisely and justly. Mr. DIXON. The word "even," as used by me, may have, I think, a different meaning from what the Senator supposes. My meaning was that those remarks ought to have influence, even upon so distinguished and so wise a body as this; but I will consent to strike out the word "even," if it is offensive to the Senator. Mr. FESSENDEN. Not at all. Mr. DIXON. I meant to say, and I now repeat, that even in such a body as the Senate of the United States, words of wisdom like these might have their effect. I certainly would be the last person to reflect on the Senate, or to reflect on the committee, but I suppose I have a right to say that I do not think the report of the committee contains all the wisdom which even may exist in the Senate or in the committee itself. Now, Mr. President, I beg leave to say a word with regard to that report and the measure which the committee have proposed. But for my great respect for the members of that committee and its chairman, and were I not forbidden by my knowledge that they are incapable of such a thing, from the bare reading of their reported propositions I should suppose that, as this writer intimates, whose language I have adopted, the object of the report was to present a scheme which could not be accepted. I am forbidden to entertain such an opinion by my great respect for the committee. I know they are incapable of anything of that sort, and I therefore am obliged to suppose that they thought this might be accepted, that it might possibly, under some supposable circumstances, calm the agitation which is prevailing on this subject, and result in the readmission of members from the late rebel States. That, no doubt, was their intention; but I beg leave to say that it seems to me that it is utterly impossible that that should ever be the effect of it. For example, allow me to particularize. After the States have accepted these terms, after they are represented in this body and in the House of Representatives for a period of nearly four years, if they accept the proposition next fall, they are to be denied the right of voting for their own Representatives in Congress; for we are told every day, and I believe it is to a certain extent true in some States, that the whole mass of the people participated in the rebellion, or at least, in the language of the report, "adhered" to it. The language of the report does not exclude merely those who were original conspirators, but all who may finally have adhered to the rebellion. Now, consider that proposition for a moment. These States are to be represented in the other House and in this body after having accepted these terms, and still their representatives are to be chosen without the votes of the people. I would ask, who is to vote? The colored men cannot vote. Take South Carolina or Mississippi or Georgia. Who is to choose Representatives in those States? I will not say it is a mockery, because my respect for the committee forbids; but I must say that it does seem to me that no man can expect that any of these States will ever accept the terms proposed. I agree with the Evening Post on that point. I will say further that I am not sure, if they would accept it, they ever ought to be permitted to vote at all. Mr. FESSENDEN. I wish to ask the Senator a question. I have the impression that President Johnson has said, over and over again, that the government of these States ought to be exercised by the loyal portion, those who had been loyal to the Union. Mr. DIXON. In the first place, I beg leave to say to the Senator from Maine that it makes no difference to me, in forming my opinions, what the President or any other man says. If the President had said so, it would not be of binding authority on me, unless my judgment approved it. In the next place, I say that I agree with the sentiment, not because the President said it, but because I believe it is a true and correct sentiment. But that is not what the report says. The report of the committee does not say that only loyal men can vote. I know the President says that; everybody says it who thinks as I do; but the question is, what is a loyal man? Mr. FESSENDEN. Did he not say those who had been loyal, those who had not participated in the rebellion, should be those intrusted with the Government? Was not that his recommendation in regard to Tennessee? Mr. DIXON. When these States are again regarded as members of the Union, if they accept the terms of readmission proposed to them, all loyal men at the time ought to be permitted to vote. I will not say that the exception made in one clause of the report is not correct, that certain leaders be disfranchised; but I say that to disfranchise a whole people, to tell them that they may send members to Congress and still shall not vote for them —for that is the result of it—to say, "You may be represented, but you shall not vote," seems a mockery. Under it there might hardly be twenty voters, possibly, in a State. Mr. President, why did I read the article from the New York Evening Post? Not as an authority. It struck me that the views were so correct and so sound that I desired to adopt them as my own, and I was very certain that the source from which those ideas came would have great weight with the loyal people of this country, and properly

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so; that that paper had a character for loyalty and for patriotism and for ability and for honesty and integrity which gave it weight; that what came from the distinguished and venerable editor of that paper was entitled to weight, even in the Senate of the United States, and therefore I read the article and adopted its language. I have only one word more to say. I am extremely desirous—no man can be more desirous than I am—to unite upon some plan which shall pacify the country, and which shall restore and reconstruct the Union. I had hoped this committee would propose something which would accomplish that. As to the plan proposed, I am utterly hopeless with regard to its producing any good effect. I may be mistaken. I have the highest respect, I need not say, for the members of the committee. I know they are patriotic; but I think they are utterly mistaken, and I think I have the right to say it, in all respect to them. Mr. FESSENDEN. The Senator front Connecticut has gone into a discussion of the merits of the report. I said nothing of the merits of the report. I did not intend to say anything, and I do not now, on that subject. I merely rise to say that I choose to avoid anything of that description until the report comes properly before the Senate, when, if I have sufficient strength, I shall endeavor to explain the views of the committee upon that subject so far as it may become my duty to explain them. In the mean time I suppose we are to have gentlemen giving us the opinions, which I think we can find out for ourselves, of different persons throughout the country. I wish only to say that, notwithstanding my respect for each and all of those who may choose to instruct us on the subject, we have a duty to discharge, and must discharge it in the best way we can upon our own views and sentiments as to what the condition of the country demands. Mr. GRIMES. There seems to be some controversy between the Senator from Connecticut and the Senator from Maine as to what are, at this time, the opinions of the President of the United States; and occupying the peculiar relations which the Senator from Connecticut does to the Chief Magistrate of the country, I desire to refer, as he has done, to a newspaper, one published in this city, purporting to give the last revised opinions of the President, and to inquire of him whether or not they are authentic. I hold in my hand the National Intelligencer of this morning, which contains an article represented to me to have been telegraphed from the precincts of the White House to the various newspapers in the country, headed, "The President and his Cabinet in Council:" "It is understood that at the Cabinet meeting yesterday the President invited an expression of opinion from the heads of Departments respecting the propositions reported on Monday last by the congressional committee on reconstruction. An interesting and animated discussion is said to have ensued, in the course of which, if rumor be true, Secretary Seward declared himself in very decided and emphatic terms against the plan of the committee and in favor of the immediate admission of loyal representatives from the lately rebellious States. "Secretary McCulloch was as positive as the Secretary of State in his opposition to the plan recommended by the committee, and expressed himself strongly in favor of an immediate consummation of the President's restoration policy by the admission into Congress of loyal men from the southern States, "Secretary Stanton was equally decided in his opposition to the committee's propositions, was for adhering to the policy which had been agreed upon and consistently pursued by the Administration, and was gratified that the President had bought the subject to the consideration of the Cabinet. "Secretary Welles was unequivocally against the committee’s was earnest in scheme, and his support 2334 THE CONGRESSIONAL GLOBE May 2, of the President's policy, comprehending the instant admission in to Congress of loyal representatives from the States lately in rebellion. "Secretary Harlan was rather reticent, and expressed no opinion." "Postmaster General Dennison was in favor of carrying out the restoration policy of the President, but expressed some doubts as to the precise time at which loyal representatives from the southern States should be admitted to seats in Congress. "Attorney General Speed was not present at the meeting being on a visit to his home in Kentucky. The President was earnest in his opposition to the report of the committee, and declared himself against all conditionsprecedent to the admission of loyal representatives from the southern States in the shape of amendments to the Constitution or the passage of laws. He insisted that under the Constitution no State could be deprived of its equal suffrage in the Senate, and that Senators and Representatives ought to be at once admitted into the respective Houses, as prescribed by law and the Constitution. He was for a rigid adherence to the Constitution as it is, and remarked that, having sustained ourselves under it during a terrible rebellion, he thought that the Government could be restored without a resort to amendments. He remarked in general terms that if the organic law is to be changed at all, it should be it a time when all the States and all the people can participate in the alteration."

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Now, Mr. President, if I understand the force of language, that is not the position that the President of the United States has hitherto occupied. If I understand it—and perhaps the Senator from Connecticut can set me right if I am in error—the President of the United States now insists that these States shall be immediately represented; that they are entitled, under the Constitution of the United States, to immediate representation in the Senate and House of Representatives without any antecedent conditions, and the most of his Cabinet concur in that opinion. I suppose that this is the antagonist proposition that is put forth from the White House in opposition to the report of the committee of fifteen, commonly called the committee on reconstruction—the immediate unconditional admission, without any terms, without any conditions, of the representatives of those States and of the people of those States. Mr. SUMNER obtained the floor. Mr. DIXON. I ask the Senator to yield to me for a moment to reply to the Senator from Iowa. Mr. SUMNER. Certainly. Mr. DIXON. The Senator from Iowa intimated in his opening remarks that I had some peculiar knowledge or means of knowledge of the President's views. He spoke of the "peculiar relations" in which I stand to the President. The Senator is entirely mistaken in regard to that. My relations to the President are precisely similar to those of the Senator himself. I have seen the President but once within the space of two mouths, and then for not over five minutes. I take his views from his written, published statements. Mr. GRIMES. If the Senator will excuse me, the fact that the Senator's resolution was identical in spirit and almost in terms with the language attributed in the National Intelligencer of this morning to the President led me to infer— Mr. DIXON. If it is identical in spirit, then the Senator is mistaken in another point when he says that the President has now taken new views and new grounds. He says that the language attributed to the President in the paper from which he has read, is identical in spirit with the resolution that I have offered. My resolution is taken from the President's veto message of the Freedmen's Bureau bill more than two months ago; so that the Senator will see that he is mistaken in supposing that there has been any change in the President's views, if mine are identical with his; and I do not suppose there has been any change. I do not suppose that the President has changed from the views contained in that resolution. I copied the resolution from the words of the President contained in that veto message because I thought they were extremely well expressed and because they were my views. Now, I desire to say with regard to this resolution of mine, that I have not offered it in consequence of any consultation with any human being. I have not seen the President or any member of the Cabinet or any human being with regard to it. I read the article in the Evening Post, and it struck me as being true and as coming from a source entitling it to great weight and authority. I knew it would be respected by this body from the character of the writer. I thought it correct, and it was exactly in accordance with my sentiments. I say this because it might possibly be supposed from what the Senator said that this resolution of mine has been offered in consequence of some consultation. Sir, I am in consultation with nobody. I attempt to act here as a Senator in accordance with my own views of right. I may be wrong; but I am under the lead of no master and no man. I care not what the President or anybody else thinks. If what he does and says is right, I support him; if they are wrong, I denounce him. That, I take it, is the position of every Senator. No man is worthy of being a Senator unless that is his position. I repeat that I have offered this resolution without consultation with anybody. Now, a single word as to the President's views. I do not see that there is any very great contradiction. It cannot be supposed that the President will in every statement which he makes of his views express every single shade of idea that he may have heretofore expressed. He thinks that the southern States should be represented. How and by whom? Take all his language together, and it is by loyal men when they come here in an attitude of harmony and loyalty to the Government and are represented by loyal men. That is what my resolution says; that is what the President says, and I believe that is his view. Mr. GRIMES. I did not intend to convey the idea that the Senator from Connecticut has a master; but I submit, after all he has said, that I was perfectly justified in saying that peculiar relations subsisted between him and the President, when he himself admits that he went, not only for the spirit, but for the identical language of his resolution, to the celebrated veto message of the President of the United States on the Freedmen's Bureau bill. Mr. DIXON. It is no uncommon thing for a resolution to be offered in language taken from a message of the President of the United States. It is frequently done, and it is very proper, as it strikes me. In some remarks that I had the honor of making about two months ago in the Senate, I embodied that extract from the message of the President as the expression of my own views. I then said that I thought it was right, and I have now offered it in

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the form of a resolution. Mr. SUMNER. When I rose a moment ago I intended to make a remark in reply to the Senator from Connecticut, but the question seems to have drifted out of sight. I will observe, however, that the question involved in his proposition is so important that I never regret— Mr. SHERMAN. I should like to know if the unfinished business does not come up at this time. The PRESIDENT pro tempore. The Chair was about to remark that the morning hour has expired, and it is the duty of the Chair to call up the unfinished business of yesterday. Mr. SHERMAN. I have no objection to allowing the special order to pass over informally for a few moments to afford Senators an opportunity to make explanations on this subject. The PRESIDENT pro tempore. The order of the day can only be laid aside by unanimous consent. No objection being made, it is laid aside informally. Mr. SUMNER. I was about to say that the proposition involved in the resolution of the Senator from Connecticut is so important that it may be considered as perhaps always in order to discuss it. I do not know that we ought to pass a day without discussing it in some way. I certainly do not deprecate this discussion; but while I say that, I am very positive on another point: I should deprecate any effort now to precipitate a decision on that question; and I most sincerely hope that the Senator from Maine, the chairman of the committee on reconstruction, who has this matter in charge, will bear that in mind. I do not believe that Congress at this moment is in a condition to give the country the best proposition on this important subject. I am afraid that that excellent committee has listened too much to voices from without, insisting that there must be an issue presented to the country. For myself, I have always thought that that call was premature. There is no occasion now for an issue to be presented to the country. There are no elections in any States. The election in Connecticut is over. The election in New Hampshire is over. There are to be no elections before next autumn. What is the occasion, then, for an issue to be presented to the country? I see none, unless Congress, after a most careful and mature discussion of the whole subject, is able to present an issue on which we can all honestly and as one phalanx go forward to battle. I do not intend to be drawn into a premature discussion of the issue presented by the report of the committee on reconstruction. I merely speak now to the question of time. I am sure that that report could not have been made in the last week of March. I am equally sure that if the committee had postponed their report until the last week of May they would have made a better one than they have made in the last week of April. I hope, therefore, following out that idea, that all decision of this question will be postponed as long as possible, to the end that all just influences may come to Congress from the country, and that Congress itself may be inspired by the fullest and amplest consideration of the whole question. Why, sir, there is the evidence which has been laid before this committee. We have not yet seen it together. That evidence ought to be together; it ought to be laid before the whole country; and we ought to have returning to us from the country the just influence which the circulation of that evidence is calculated to cause. I am sure that wherever that evidence is read the people will say Congress is justified in insisting upon security for the future. To that end, I take it, the evidence was taken, and I hope that Congress will not act until we get the natural and legitimate influences from that evidence. But, sir, allow me to say, by way of comment on the proposition of the Senator from Connecticut, that it seems to me my excellent friend, when he brought forward his proposition, forgot two things. Mr. DIXON. Probably more than that. Mr. SUMNER. He says probably more than that; but the two things he forgot were so great, so essential, that to forget them was to forget everything. In the first place, he forgot that we had been in a war; and in the second place, he forgot that four million human beings had been changed from a condition of slavery to freedom. Those two great ruling facts my excellent friend forgot, evidently, when he drew up his proposition. He forgot that we had been in a war, because he fails to make any provision for that security which common sense and common prudence, the law of nations, and every instinct of the human heart require should be made. He provides no guarantee. Sir, the essential thing at this moment, is a guarantee. The Senator abandons that; but it is because he forgets that we have been in a war. If I, like the Senator from Connecticut, could forget this terrible war, with all the blood and treasure that it has cost us, I, too, could forget the guarantees; but as that war is always in any mind, the Senator will pardon me if I insist that we shall have guarantees. Mr. DIXON. If the Senator will allow me— Mr. SUMNER. In one moment I shall have done. In the second place, I have said that my excellent friend forgets that four million human beings have been changed in their condition. Four million slaves have been declared to be freemen; and by whom, and

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1866 THE CONGRESSIONAL GLOBE 2335 by what power? By the national Government; and let me say that, as the national Government gave that freedom, it belongs to the national Government to secure it. The national Government cannot leave those men whom it has made free to the guardianship or custody or tender mercies of any other government. It is bound to take them into its own keeping, to surround them all by its own protecting power, and invest them with all the rights and conditions which in the exercise of its best judgment shall seem necessary to that end. All that my excellent friend has absolutely forgotten. It is not in his mind. If I could bring myself to such an obliviousness, if I could bathe so completely in the waters of Lethe as my excellent friend from Connecticut seems to have done daily in these recent times, I could join him in the support of his proposition. Mr. DIXON. One word in reply to the Senator from Massachusetts, with the consent of the Senate. The Senator says that I have forgotten many things, and among others the guarantees required by the four million slaves who have been emancipated. I desire to ask the Senator what guarantee those persons have in the proposition reported by the committee. The Senator exhausted all the terms of opprobrium in the English language in denouncing a resolution which was before the Senate some time since, and which contained the only guarantee for the colored race that is contained in this report. The only guarantee which he says he keeps constantly in his mind, and which I have forgotten, contained in this report is that providing that if those persons are not allowed to vote in the States in which they reside they shall not be counted in the apportionment of Representatives. The Senate has not yet forgotten—the echoes are still ringing in this Hall—what the Senator said in regard to that proposition. If the English language contains any term of reproach, if it can be coined into any form or shape of opprobrium which he did not exhaust on that subject, and some of which my friend from Maine [Mr. Fessenden] cited as beauties of rhetoric, I am mistaken. I think he could have gone no further in denouncing that very proposition which is the only guarantee in this report; and yet he says I have forgotten that they require guarantees. I beg leave to remind the Senator that he too has forgotten his own words on that subject. Mr. SUMNER. Not at all. The resolution of Mr. Dixon was ordered to he printed.

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2560 THE CONGRESSIONAL GLOBE May 14, RECONSTRUCTION, Mr. STEWART. I desire to offer, for the purpose of amendment to the joint resolution (S. R. No. 78) reported by the committee of fifteen, the proposition which I now submit. It defines what is meant by "citizens," in the first article of the proposed constitutional amendment, and strikes out the third section as reported by the committee. I also desire to offer, as a substitute for the two bills reported by the committee, a bill embodying both of those bills in one; and providing, further, that when the constitutional amendment, as I propose to change it, shall have been adopted by the requisite majority, and any State lately in insurrection shall have consented to the conditions named in the bill, that State may be admitted, with an alternative offering them, as I proposed before, with a slight limitation, amnesty for an extension of suffrage by themselves in their State constitutions. I propose, in other words, to give them the alternative of enfranchising or disfranchising — of disfranchising as proposed by the committee, or of enfranchising and receiving amnesty. The PRESIDENT pro tempore. The Chair will state that the bills and joint resolution to which the Senator proposes to offer amendments, are not now before the Senate; but this will be regarded by the Chair as notice that the Senator will, when these questions come up, propose the amendments which he has now submitted. Mr. STEWART. I desire now simply to have an order for their printing. The proposed amendments were received informally, and ordered to he printed. 1866 THE CONGRESSIONAL GLOBE 2579 RECONSTRUCTION. Mr. FESSENDEN. Before the Senate proceeds with the regular business of the day, I wish to say a word in reference to the report of the committee on reconstruction, or rather the joint resolution which has been passed by the House of Representatives, and is now upon the table of the Senate, reported by that committee. Many inquiries have been made of me by gentlemen as to when I proposed to call up the resolution which has been passed by the other House, for action 2580 THE CONGRESSIONAL GLOBE May 15, on the part of the Senate, and we have come to the conclusion that we shall ask the Senate to proceed to the consideration of that resolution on Monday next; and I beg also to express the hope that when it is taken up we may devote the entire hours of the Senate, with the exception, of course, of the morning hour each day, strictly to the consideration of that business, and with the expectation, or the hope at least, that we shall be able to dispose of it in the course of the week. Mr. JOHNSON. Does the Senator say that he has consulted all the members of the committee? Mr. FESSENDEN. I consulted all who were present at the time. I did not consult the Senator from Maryland because he was not in his seat. I will now only repeat the hope I before expressed, that we may take up the subject on Monday next and confine ourselves to its consideration, with the idea that we may be able to finish it in the course of next week. 2636 THE CONGRESSIONAL GLOBE May 17, RECONSTRUCTION. Mr. WADE submitted an amendment which he intends to offer to the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States when it comes up for consideration. The amendment was received, and ordered to be printed. 2710 THE CONGRESSIONAL GLOBE May 21, RECONSTRUCTION. Mr. FESSENDEN. I desire to make a remark to Senators, in consequence of the notice which I gave a week ago that I should today call up the joint resolution reported by the committee on reconstruction, which has already been passed by the House of Representatives. I am obliged, today, to ask the indulgence of the Senate, and to say that I shall not desire them to proceed with that matter until Wednesday. I am utterly unable, myself, to take charge of it; but whatever may be my own condition on Wednesday, I shall expect the Senate to proceed with the consideration of the subject. I defer calling it up until Wednesday morning, when I hope to have the attention of the Senate to it.

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2764 THE CONGRESSIONAL GLOBE May 23, RECONSTRUCTION. The Senate, as in Committee of the Whole, proceeded to consider the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, which was read as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely: ARTICLE —. Sec. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Sec. 2. Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age. Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States. Sec. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor. Sec. 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article. Mr. HOWARD. Mr. President, I regret that the state of the health of the honorable Senator from Maine [Mr. Fessenden] who is 1866 THE CONGRESSIONAL GLOBE 2765 chairman, on the part of the Senate, of the joint committee of fifteen, is such as to disable him from opening the discussion of this grave and important measure. I was anxious that he should take the lead, and the prominent lead, in the conduct of this discussion, and still entertain the hope that before it closes the Senate will have the benefit of a full and ample statement of his views. For myself, I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced that committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish. The joint resolution creating that committee intrusted them with a very important inquiry, an inquiry involving a vast deal of attention and labor. They were instructed to inquire into the condition of the insurgent States, and authorized to report by bill or otherwise at their discretion. I believe that I do not over-state the truth when I say that no committee of Congress has ever proceeded with more fidelity and attention to the matter intrusted to them. They have been assiduous in discharging their duty. They have instituted an inquiry, so far as it was practicable for them to do so, into the political and social condition of the insurgent States. It is very true, they have not visited any localities outside of the city of Washington in order to obtain information; but they have taken the testimony of a great number of witnesses who have been summoned by them to Washington, or who happened to be in Washington, and who had some acquaintance with the condition of affairs in the insurgent States. I think it will be the judgment of the country in the end that that committee, so far as the procuring of testimony upon this subject is concerned, has been not only industrious and assiduous, but impartial and entirely fair. I know that such has been their aim. I know that it has not been their purpose to present to Congress and the country in their report anything unfair or one-sided, or anything of a party tendency. Our anxiety has been to ascertain the whole truth in its entire length and breadth, so far as the facilities given us would warrant. One result of their investigations has been the joint resolution for the amendment of the Constitution of the United States now under consideration. After most mature deliberation and discussion, reaching through weeks and even months, they came to the conclusion that it was necessary, in order to restore peace and quiet to the

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country and again to impart vigor and efficiency to the laws, and especially to obtain something in the shape of a security for the future against the recurrence of the enormous evils under which the country has labored for the last four years, that the Constitution of the United States ought to be amended; and the project which they have now submitted is the result of their deliberations upon that subject. The first section of the amendment they have submitted for the consideration of the two Houses relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. It declares that— No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is its first clause, and I regard it as very important. It also prohibits each one of the States from depriving any person of life, liberty, or property without due process of law, or denying to any person within the jurisdiction of the State the equal protection of its laws. The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, "citizen of the United States," although that expression occurs twice in the Constitution, once in reference to the President of the United States, in which instance it is declared that none but a citizen of the United States shall be President, and again in reference to Senators,who are likewise to be citizens of the United States. Undoubtedly the expression is used in both those instances in the same sense in which it is employed in the amendment now before us. A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws. Before the adoption of the Constitution of the United States, the citizens of each State were, in a qualified sense at least, aliens to one another, for the reason that the several States before that event were regarded by each other as independent Governments, each one possessing a sufficiency of sovereign power to enable it to claim the right of naturalization; and, undoubtedly, each one of them possessed for itself the right of naturalizing foreigners, and each one, also, if it had seen fit so to exercise its sovereign power, might have declared the citizens of every other State to be aliens in reference to itself. With a view to prevent such confusion and disorder, and to put the citizens of the several States on an equality with each other as to all fundamental rights, a clause was introduced in the Constitution declaring that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The effect of this clause was to constitute ipso facto the citizens of each one of the original States citizens of the United States. And how did they antecedently become citizens of the several States? By birth or by naturalization. They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States. They are, by constitutional right, entitled to these privileges and immunities, and may assert this right and these privileges and immunities, and ask for their enforcement whenever they go within the limits of the several States of the Union. It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. Indeed, if my recollection serves me, that court, on a certain occasion not many years since, when this question seemed to present itself to them, very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudicated when they should happen practically to arise. But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge Washington; and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield vs. Coryell, found in 4 Washington's Circuit Court Reports, page 380. Judge Washington says: "The next question is whether this act infringes that section of the Constitution which declares that

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'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?' "The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) 'the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.'" Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress. Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course 2766 THE CONGRESSIONAL GLOBE May 23, do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not powers granted to Congress, and therefore it

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is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that "the Congress shall have power to enforce by appropriate legislation the provisions of this article." Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution. The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body? But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a despotism. As I have already remarked, section one is a restriction upon the States, and does not, of itself, confer any power upon Congress. The power which Congress has, under this amendment, is derived, not from that section, but from the fifth section, which gives it authority to pass laws which are appropriate to the attainment of the great object of the amendment. I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just Government. Without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government and none that is really worth maintaining. The second section of the proposed amendment reads as follows: Sec. 2. Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens— That is, citizens as to whom the right of voting is denied or abridged— shall bear to the whole number of male citizens not less than twenty-one years of age. It is very true, and I am sorry to be obliged to acknowledge it, that this section of the amendment does not recognize the authority of the United States over the question of suffrage in the several States at all; nor does it recognize, much less secure, the right of suffrage to the colored race. I wish to meet this question fairly and frankly; I have nothing to conceal upon it; and I am perfectly free to say that if I could have my own way, if my preference's could be carried out, I certainly should secure suffrage to the colored race to some extent at least; for I am opposed to the exclusion and proscription of an entire race. If I could not obtain universal suffrage in the popular sense of that expression, I should be in favor of restricted, qualified suffrage for the colored race. But, sir, it is not the question here what will we do; it is not the question what you, or I, or half a dozen other members of the Senate may prefer in respect to colored suffrage; it is not entirely the question what measure we can pass through the two Houses; but the question really is, what will the Legislatures of the various States to whom these amendments are to be submitted do in the premises; what is it likely will meet the general approbation of the people who are to elect the Legislatures, three fourths of whom must ratify our propositions before they have the

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force of constitutional provisions? Let me not be misunderstood. I do not intend to say, nor do I say, that the proposed amendment, section two, proscribes the colored race. It has nothing to do with that question, as I shall show before I take my seat. I could wish that the elective franchise should be extended equally to the white man and to the black man; and if it were necessary, after full consideration, to restrict what is known as universal suffrage for the purpose of securing this equality, I would go for a restriction; but I deem that impracticable at the present time, and so did the committee. The colored race are destined to remain among us. They have been in our midst for more than two hundred years; and the idea of the people of the United States ever being able by any measure or measures to which they may resort to expel or expatriate that race from their limits and to settle them in a foreign country, is to me the wildest of all chimeras. The thing can never be done; it is impracticable. For weal or for woe, the destiny of the colored race in this country is wrapped up with our own; they are to remain in our midst, and here spend their years and here bury their fathers and finally repose themselves. We may regret it. It may not be entirely compatible with our taste that they should live in our midst. We cannot help it. Our forefathers introduced them, and their destiny is to continue among us; and the practical question which now presents itself to us is as to the best mode of getting along with them. The committee were of opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the subject. It was our opinion that three fourths of the States of this Union could not he induced to vote to grant the right of suffrage, even in any degree or under any restriction, to the colored race. We may be right in this apprehension or we may be in error. Time will develop the truth; and for one I shall wait with patience the movements of public opinion upon this great and absorbing question. The time may come, I trust it will come, indeed I feel a profound conviction that it is not far distant, when even the people of the States themselves where the colored population is most dense will consent to admit them to the right of suffrage. Sir, the safety and prosperity of those States depend upon it; it is especially for their interest that they should not retain in their midst a race of pariahs, so circumstanced as to be obliged to bear the burdens of Government and to obey its laws without any participation in the enactment of the laws. The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right. Its basis of representation is numbers, whether the numbers be white or black; that is, the whole population except untaxed Indians and persons excluded by the State laws for rebellion or other crime. Formerly under the Constitution, while the free States were represented only according to their respective numbers of men, women, and children, all of course endowed with civil rights, the slave States had the advantage of being represented according to their number of the same free classes, increased by three fifths of the slaves whom they treated not as men but property. They had this advantage over the free States, that the bulk of their property in the proportion of three fifths had the right of representation in Congress, while in the free States not a dollar of property entered into the basis of representation. John Jacob Astor, with his fifty millions of property, was entitled to cast but one vote, and he at the ballot-box would meet his equal in the raggedest beggar that strolled the streets. Property has been rejected as the basis of just representation; but still the advantage that was given to the slave States under the Constitution enabled them to send at least twenty-one members to Congress in 1860, based entirely upon what they treated as property—a number sufficient to determine almost every contested measure that might come before the House of Representatives. The three-fifths principle has ceased in the destruction of slavery and in the enfranchisement of the colored race. Under the present Constitution this change will increase the number of Representatives from the once slaveholding States by nine or ten. That is to say, if the present basis of representation, as established in the Constitution, shall remain operative for the future, making our calculations upon the census of 1860, the enfranchisement of their slaves would increase the number of their Representatives in the other House nine or ten, I think at least ten; and under the next census it is easy to see that this number would be still increased; and the important question now is, shall this be permitted while the colored population are excluded from the privilege of voting? Shall the recently slaveholding States, while they exclude from the ballot the whole of their black population, be entitled to include the whole of that population in the basis of their representation, and thus to obtain an advantage which they did not possess before the rebellion and emancipation? In short, shall we permit it to take place that one of the results of emancipation and of the war is to increase the Representatives of the late slaveholding States? I object to this. I think they cannot very consistently call upon us to grant them an additional number of Representatives simply because in consequence of their own misconduct they have lost the property which they once possessed, and which served as a basis in great part of their representation.

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1866 THE CONGRESSIONAL GLOBE 2767 The committee thought this should no longer be permitted, and they thought it wiser to adopt a general principle applicable to all the States alike, namely, that where a State excludes any part of its male citizens from the elective franchise, it shall lose Representatives in proportion to the number so excluded; and the clause applies not to color or to race at all, but simply to the fact of the individual exclusion. Nor did the committee adopt the principle of making the ratio of representation depend upon the number of voters, for it so happens that there is an unequal distribution of voters in the several States, the old States having proportionally fewer than the new States. It was desirable to avoid this inequality in fixing the basis. The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution. By the census of 1860, the whole number of colored persons in the several States was four million four hundred and twenty-seven thousand and sixty-seven. In five of the New England States, where colored persons are allowed to vote, the number of such colored persons is only twelve thousand one hundred and thirty-two. This leaves of the colored population of the United States in the other States unrepresented, four million four hundred and fourteen thousand nine hundred and thirty-five, or at least one seventh part of the whole population of the United States. Of this last number, three million six hundred and fifty thousand were in the eleven seceding States, and only five hundred and forty-seven thousand in the four remaining slave States which did not secede, namely, Delaware, Maryland, Kentucky, and Missouri. In the eleven seceding States the blacks are to the whites, basing the calculation upon the census of 1860, nearly as three to five. A further calculation shows that if this section shall be adopted as a part of the Constitution, and if the late slave States shall continue hereafter to exclude the colored population from voting, they will do it at a loss at least of twenty-four Representatives the other House of Congress, according to the rule established by the act of 1850. I repeat, that if they shall persist in refusing suffrage to the colored race, if they shall persist in excluding that whole race from the right of suffrage, they will lose twenty-four members of the other House of Congress. Some have estimated their loss more and some less; but according to the best calculation I have been able to make, I think that will be the extent. It is not to be disguised — the committee have no disposition to conceal the fact — that this amendment is so drawn as to make it the political interest of the once slaveholding States to admit their colored population to the right of suffrage. The penalty of refusing will be severe. They will undoubtedly lose, and lose so long as they shall refuse to admit the black population to the right of suffrage, that balance of power in Congress which has been so long their pride and their boast. It will be observed, however, that this amendment does not apply exclusively to the insurgent States, nor to the slaveholding States, but to all States without distinction. It says to all the States, "If you restrict suffrage among your people, whether that people be white or black or mixed, your representation in Congress shall be reduced in proportion to that restriction." It holds out the same penalty to Massachusetts as to South Carolina, the same to Michigan as to Texas. Mr. CLARK. If the Senator will pardon me for a moment, I wish to inquire whether the committee's attention was called to the fact that if any State excluded any person, say as Massachusetts does, for want of intelligence, this provision cuts down the representation of that State. Mr. HOWARD. Certainly it does, no matter what may be the occasion of the restriction. It follows out the logical theory upon which the Government was founded, that numbers shall be the basis of representation in Congress, the only true, practical, and safe republican principle. If, then, Massachusetts should so far forget herself as to exclude from the right of suffrage all persons who do not believe with my honorable friend who sits near me [Mr. Sumner] on the subject of negro suffrage, she would lose her representation in proportion to that exclusion. If she should exclude all persons of what is known as the orthodox faith she loses representation in proportion to that exclusion. No matter what may be the ground of exclusion, whether a want of education, a want of property, a want of color, or a want of anything else, it is sufficient that the person is excluded from the category of voters, and the State loses representation in proportion. The principle applies to every one of the States in precisely the same manner. And, sir, the true basis of representation is the whole population. It is not property, it is not education, for great abuses would arise from the adoption of the one or the other of these two tests. Experience has shown that numbers and numbers only is the only true and safe basis; while nothing is clearer than that property qualifications and educational qualifications have an inevitable aristocratic tendency — a thing to be avoided.

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Mr. STEWART. I wish to call the attention of the Senator to the word "abridged" before he passes from that branch of the subject. I should like to understand the operation intended by that expression. Mr. HOWARD. The word "abridged" I regard as a mere intensitive, applicable to the preceding sentence, "but whenever, in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in anyway abridged" to any portion of its male citizens not less than twenty-one "except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens" — that is, the number of citizens as to whom it is either denied or abridged — "shall bear to the whole number of male citizens not less than twenty-one years of age." I suppose it would admit of the following application: a State in the exercise of its sovereign power over the question of suffrage might permit one person to vote for a member of the State Legislature, but prohibit the same person from voting for a Representative in Congress. That would be an abridgment of the right of suffrage; and that person would be included in the exclusion, so that the representation from the State would be reduced in proportion to the exclusion of persons whose rights were thus abridged. Mr. STEWART. Take a case of this kind: suppose that in the South they should allow the negroes to vote who had been in the Army, or who had educational qualifications; would those who did vote be included in the basis of representation, or would that be an abridgment of that class of persons so that they would all be excluded? Mr. HOWARD. It is not an abridgment to a caste or class of persons, but the abridgment or the denial applies to the persons individually. If the honorable Senator will read the section carefully I think he will not doubt as to its true interpretation. It applies individually to each and every person who is denied or abridged, and not to the class to which he may belong. It makes no distinction between black and white, or between red and white, except that if an Indian is counted in he must be subject to taxation. But as to the principle of representation, I beg to call the attention of Senators to two passages which I will read from the Writings of Mr. Madison, whose reflections upon the right of suffrage were at once the most enlightened and profound, to show what were his ideas respecting the right of suffrage and the persons to whom it ought to be granted. It applies to this whole subject. They apply as well to the negro as to the white man. Mr. Madison has been discussing the question of confining the right of suffrage to freeholders, and he observes: "Confining the right of suffrage to freeholders and to such as hold an equivalent property, convertible, of course, into freeholds. The objection to this regulation is obvious. It violates the vital principle"— Here my honorable friend from Massachusetts will observe what I regard as the vital principle of republican government; it is not representation because of taxation; it is this— "the vital principle of free government, that those who are to be bound by the laws ought to have a voice in making them." That is the point; that those who are to be bound by the laws ought to have a voice in making the laws. Mr. JOHNSON. Does the honorable member read from Madison's Writings? Mr. HOWARD. The fourth volume of Madison's Writings, page 25. Mr. SUMNER. Is that applicable to all without distinction of color? Mr. HOWARD. Certainly it is, and whether they can read and write or not. The point is that the person who is bound by the laws in a free Government ought to have a voice in making them. It is the very essence of republican government. Again he observes, page 27: "Under every view of the subject it seems indispensable"I wish the attention of my honorable friend from Maryland to this, for I know how much he reverences the character and talents of James Madison— "Under every view of the subject" "Every view of the subject," not a partial view, but every view which had presented itself or could present itself to the mind of that great man— "it seems indispensable that the mass of citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them. And if the only alternative be between an equal and universal right of suffrage for each branch of the Government, and a confinement of the entire right to a part of the citizens, it is better that those having the greater interest at stake, namely, that of property and persons both, should be deprived of half their share in the Government, than that those having the lesser interest, that of personal rights only, should he deprived of the whole." Now, apply that great principle as broadly as it is laid down by Mr. Madison on the page from which I have

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read, and how can any man of true republican feeling, attached to the essential principles of our system of government, refuse the right of suffrage to the whole negro population as a class? Mr. JOHNSON. Females as well as males? Mr. HOWARD. Mr. Madison does not say anything about females. Sir. JOHNSON. "Persons." Mr. HOWARD. I believe Mr. Madison was old enough and wise enough to take it for granted there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children were not regarded as the equals of men. Mr. Madison would not have quibbled about the question of women's voting or of an infant's voting. He lays down a broad democratic principle, that those who are to be bound by the laws ought to have a voice in making them; and everywhere mature manhood is the representative type of the human race. I have but very little to say, Mr. President, as to the third section of this amendment. It reads as follows: Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States. It is due to myself to say that I did not favor 2768 THE CONGRESSIONAL GLOBE May 23, this section of the amendment in the committee, I do not believe, if adopted, it will be of any practical benefit to the country. It will not prevent rebels from voting for members of the several State Legislatures. A rebel, notwithstanding this clause, may vote for a member of the State Legislature. The State Legislature may be made up entirely of disloyal elements, in consequence of being elected by a rebel constituency. That Legislature when assembled has the right, under the Constitution, to appoint presidential electors itself if it shall choose to do so, and to refuse to refer that question to the people. It is the right of every State. It is very probable that the power of the rebel States would be used in exactly that way. We should therefore gain nothing as to the election of the next or any future President of the United States. Rather than this, I should prefer a clause prohibiting all persons who have participated in the rebellion, and who were over twenty-five years of age at the breaking out of the rebellion, from all participation in offices, either Federal or State, throughout the United States. I think such a provision would be a benefit to the nation. It would ostracize the great mass of the intelligent and really responsible leaders of the rebellion. Mr. CLARK. I will state to the Senator that I have drawn an amendment something of this kind, which I will read, to see how it would meet his view, if he will permit me at this time: That no person shall be a Senator or Representative in Congress or permitted to hold any office under the Government of the United States who, having previously taken an oath to support the Constitution thereof, shall have voluntarily engaged in any insurrection or rebellion against the United States, or given aid or comfort thereto. That would exclude all those who had taken an oath to support the Constitution of the United States, thereby acknowledged their allegiance to that Government, and had proved false to that oath by joining the rebellion. Mr. HOWARD. I am by no means sure that I should not be quite willing to support such an amendment as that suggested by the honorable Senator from New Hampshire. Mr. JOHNSON. Will the honorable member from New Hampshire inform me whether he proposes to offer that as an amendment? Mr. CLARK. That was my idea in drawing it. Mr. HOWARD. The fourth section of this amendment declares that Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor. I take it for granted that no member of this body would oppose the adoption of this section of the amendment. I do not believe the people of the United States will object to declaring that the whole of the rebel debt shall be eternally repudiated and extinguished — a debt contracted in the prosecution of the most wicked war with which the earth was ever cursed, against a Government that was never felt by them except in the benefits it conferred. Such a debt can never be assumed or paid by the loyal people of the United States, and if suffered to remain in quasi existence it can only be left in that condition as a subject of political squabbling and party wrangling. The assumption of the rebel debt would be the last and final signal for the destruction of the nation known as

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the United States of America. Whatever party may succeed in so wicked a scheme, by whatever name it may be called and under whatever false guises or pretenses it may operate, if it succeed in assuming this indebtedness, puts an end first to the credit of the Government, and then, as an unavoidable consequence, to the Government itself. I do not propose to spend time upon this branch of the subject. I simply refer to it as a necessity of such magnitude as in my judgment to demand our action and the action of the States of the Union without delay. It is necessary to act, to extinguish this debt, to put it beyond the pale of party controversy, to put it out of sight, and to bury it so deep that it can never again be raised to life in such manner as to become a theme of party discussion. The amount of that debt is probably not less than five billion dollars. We do not know its exact amount, and I am not sure that it is possible ever to ascertain it; but if there should ever be a fair prospect of its assumption by the United States or by the States it is perfectly certain that the evidences of it would multiply thicker than the leaves in Vallombrosa. Those evidences are a great curiosity in the history of commercial affairs. I hold in my hand a specimen of the confederate currency. I will read it for the information of Senators and to give it a permanent registration among our proceedings: Richmond, December 1, 1862. No. 81413. Six months after the ratification of a treaty of peace between the Confederate States and the United States of America, the Confederate States of America will pay to the bearer on demand $100. Signed by the Treasurer and countersigned by the Begister of the Confederate States of America, at Richmond. Such is the kind of commercial security upon which the rebellion was chiefly waged against us. The confederacy issued its promises payable six months after a treaty of peace should be ratified between these States and the United States. I hardly think that in a lawyer's office that would be regarded as negotiable paper. I doubt very much whether the bearer of such a security would be able to sue upon it, even in a court of South Carolina. It is payable not exactly upon the happening of a contingency, but upon the happening of what is and ever will be a total impossibility. "Six months after a treaty of peace." It is not yet due, and of course never will become due. It was never expected to become due by any man who had a thimble-full of brains; but was used as part of that vast system of humbug, deception, and imposture by which the southern people were deluded. Their bogus government never expected to pay it. Sir, the peace of the country ought not to be disturbed or jeoparded by the agitation of any such question as the assumption of the rebel debt. It becomes the character and dignity of the Government, which has spent so much of treasure and blood in putting down this wicked rebellion, to give an assurance to the people of the United States, whether loyal or disloyal, and to all the people of the civilized world, that this rebel debt thus contracted is never to be paid, that it shall never be recognized as the foundation of any claim or any contract whatever; and such an assurance will be also an especial compensation to the holders of the "cotton loan" in England, which has created so much sensation both on the other side of the Atlantic and on this. I confess I am not without a little anxiety on this point. I wish to give those martyrs to the cause of the "confederate States of America," those who so generously lent that mushroom government their cold cash upon the promises contained in the cotton bonds, a final assurance as to the real value of their securities, and that they are never to look to the United States or to any State of the Union for indemnity on account of moneys advanced by them in the piratical scheme of destroying the Government of the United States. Sir, I do not believe in paying traitors, nor do I believe in indemnifying men abroad who, with their eyes open and a malignity in their heart beyond all parallel, gave them aid and comfort. Nor do I see the propriety of keeping this question open before the country, and enabling the foreign holders of cotton bonds to keep the political atmosphere of this country in a turmoil for the future with a view ultimately of getting their pay from somebody. It is time for us to put our hands upon this whole thing and to extinguish all hope. The next clause is a very simple one. I have already remarked upon it; and shall spend no more time upon it. It gives to Congress power to enforce by appropriate legislation all the provisions of this article of amendment. Without this clause, no power is granted to Congress by the amendment or any one of its sections. It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith, and that no State infringes the rights of persons or property. I look upon this clause as indispensable for the reason that it thus imposes upon Congress this power and this duty. It enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment. Mr. WADE. I move to amend the joint resolution by striking out all after the word "article" in line eight, and substituting the proposition which I send to the Chair to be read.

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The Secretary read the words proposed to be inserted, as follows: Sec. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of persons born in the United States or naturalized by the laws thereof; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Sec. 2. No class of persons as to the right of any of whom to suffrage discrimination shall be made, by any State, shall be included in the basis of representation, unless such discrimination be in virtue of impartial qualifications founded on intelligence or property, or because of alienage, or for participation in rebellion or other crime. Sec. 3. The public debt of the United States, including all debts or obligations which have been or may hereafter be incurred in suppressing insurrection or in carrying on war in defense of the Union, or for payment of bounties or pensions incident to such war and provided for by law, shall be inviolable. But debts or obligations which have been or may hereafter be incurred in aid of insurrection or of war against the United States, and claims of compensation for loss of involuntary service or labor, shall not be assumed or paid by any State nor by the United States. Sec. 4. The Congress shall have power to enforce by appropriate legislation the provisions of this article. Mr. WADE. I do not rise now for the purpose of arguing this question at any length; and it is with very great deference that I offer an amendment to the proposition reported by the committee who have had this particular subject under consideration so long. I know that they are infinitely more competent than I am to deal with it; but there are so many conflicting views in regard to this whole matter, and it is so vitally important to the interests of the country that we get the proposition upon which we shall unite as near right as we can, that after all it seems to me to be proper that every Senator who believes he can by possibility improve the plan which has been brought forward by the committee should offer his amendment for the consideration of the body. I do not know that the proposition which I have now submitted will be deemed an improvement upon what they have brought forward; but nevertheless there are some things in it that appear to me to be better, and an improvement upon their report. In the first section of the proposition of the committee, the word "citizen" is used. That is a term about which there has been a good deal of uncertainty in our Government. The courts have stumbled on the subject, and even here, at this session, that question has been up and it is still regarded by some as doubtful. I regard it as settled by the civil rights bill, and, indeed, in my judgment, it was settled before. I have always believed that every person, of whatever race or color, who was born within the United States was a citizen of the United States; but by the decisions of the courts there has been a doubt thrown over that subject; and if the Government should fall into the hands of those who are opposed to the views that some of us maintain, those who have been accustomed to take a different view of it, they may construe the provision in such a way as we do not think it liable to construction at this time, unless we fortify and make it very strong and clear. If we do not do so 1866 THE CONGRESSIONAL GLOBE 2769 there may be danger that when party spirit runs high, it may receive a very different construction from that which we would now put upon it. I find that gentlemen doubt upon that subject, and I think it is very easy now to solve that doubt and put the question beyond all cavil for the present and for the future. In the first clause of the amendment which I have submitted, I strike out the word " citizens," and require the States to give equal rights and protection of person and property to all persons born in the United States or naturalized under the laws thereof. That seems to me to put the question beyond all doubt. The Senator from Maine suggests to me, in an undertone, that persons may be born in the United States and yet not be citizens of the United States. Most assuredly they would be citizens of the United States unless they went to another country and expatriated themselves, if they could do so by being adopted in that other country by some process of naturalization that I know nothing about; for I believe the countries of Europe — certainly it is so in England — have always held that a person born within the realm cannot expatriate himself and become a citizen of any other country or owe allegiance to any other country. I think, then, the first section of my amendment covers the whole ground. Mr. FESSENDEN. Suppose a person is born here of parents from abroad temporarily in this country. Mr. WADE. The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside "near" the United States, in the diplomatic language. By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their

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children would not be citizens of the United States, although born in Washington. I agree to that, but my answer to the suggestion is that that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case. I will let it come under that well-known maxim of the law, de minimis lex non curat. It would make no difference in the result. I think it better to put this question beyond all doubt and all cavil by a very simple process, such as is the language of the first section of the amendment I have offered. I do not know that the corresponding section reported by the committee would leave the matter very doubtful; but that which I have proposed is beyond all doubt and all cavil now and hereafter, and it is as easy to adopt it as it is the other. I regard it as an improvement, and therefore I think it ought to be adopted. The second section is in regard to the apportionment of representation; and here I like the provision I have proposed better than the corresponding one of the committee. There is no doubt or cavil about it; and it contains some elements which I think make it entirely preferable to the other proposition. There are some reasons, and many believe there are good reasons, for restricting universal suffrage, and upon such principles as not to justify the inflicting of a punishment or penalty upon a State which adopts restricted suffrage. It is already done in some of the New England States — in Massachusetts, for instance. I believe the constitution of that State restricts the right of suffrage to persons who can read the Constitution of the United States and write their names. I am not prepared to say that that is not a wise restriction. At all events, a State has the right to try that experiment; but if she tries it, under the report of the committee she must lose, in the proportion that she has such persons among her inhabitants, her representation in Congress. I do not think that ought to be so. I think we should leave the subject open to the State to act as they see fit about it. I think my amendment in this respect is plainer and more practicable than the proposition of the committee. The entire population is taken in the first instance, as a basis. The census always discriminates between the black and the white population, and it makes several other discriminations; and therefore it is, and will be at all times, perfectly easy and practicable to ascertain exactly how much of the population of a State shall be counted in the basis of representation under my amendment. Under the other proposition, it seems to me, you must have a census commission all the time in operation in order to keep pace with the variations that will take place from time to time. Under this amendment you ascertain the classes of the population, and when any discrimination shall be made upon any of these subjects the whole of that particular class will be excluded. There is only one question to be determined. If the exclusion is because of race or color, the question is what amount of colored population is there in the State, and in exactly that proportion she is to lose representation. If any class is deprived of the privilege of voting there should certainly be some restriction on the representation of the State which excludes them. In that particular I think my amendment is a great improvement on the provision reported by the committee. My amendment is such that a calculation can very easily be made of what the restriction of representation is under it. I have not myself calculated it; but we know that some of the States would lose more than half their representation; South Carolina would, and I think Mississippi would, and some other of the States would lose largely if they excluded their colored population from voting; and I think they ought to be restricted in the proportion that the excluded portion bear to the whole. In the next place, my amendment prohibits and renders null and void all obligations incurred in rebellion and insurrection against the United States or for the purpose of aiding rebellion or insurrection; and in that particular it is precisely the same as the corresponding section of the original proposition which was so eloquently defended and enforced by the Senator from Michigan. I agree with all that he said on that subject, and the proposition reported by his committee and the one I have submitted are the same in that respect; but then my amendment goes to another branch of this business almost as essential as that. It puts the debt incurred in the civil war on our part under the guardianship of the Constitution of the United States, so that it Congress cannot repudiate it. I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress. I consider that a very beneficial provision, which is not in the original proposition. This section of my amendment goes further, and secures the pensioners of the country. We ought to do something to protect those wounded patriots who have been stricken down in the cause of their country, and to put the security of their pensions and their means of support beyond the power of wavering majorities in Congress, who may at some time, perhaps, be hostile to the soldier. In the condition of things around us we have no great guarantee now that rebels will not ere long be in these Halls, deadly hostile to everything that shall benefit the soldier who was used as an instrument in their downfall and their conquest. Let the policy which I

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understand to be that now prevailing at the other end of the avenue be adopted, and we have no security and no guarantee that the widow of your dead soldier, who died in the cause of his country, will not be deprived of the pittance that we give her as a support. I am anxious to put the pensions of our soldiers and their widows and children under the guardianship of the Constitution of the United States. They ought to be there, along with your public debt. I think no gentleman will deny that it is very essential that the debt incurred in this war should be placed under the protection of the Constitution of the United States, especially when we are now prosecuting a doubtful war with your Executive as to whether open and hostile rebels shall not have seats in Congress. If they are admitted here to act with their sympathizers at the North, who have constantly opposed every policy that looked to the remuneration of those engaged in the war on our part, who have been opposed to every war measure, who voted against paying your Army in the field, or doing anything to defend the country, what will be the result? Under the dictation of such a policy, should it prevail, who can guaranty that the debts of the Government will be paid, or that your soldiers and the widows of your soldiers will not lose their pensions? I hope that whether my amendment be adopted or not, any amendment to the Constitution which shall finally prevail will contain a clause like this. Mr. President, I have stated nearly all the differences between my amendment and the proposition of the committee. I have left out of the amendment the third section of the resolution, because as the Senator from Michigan has said it does not seem to me to amount to much. Practically I do not believe it would have any effect. I am for excluding those who took any leading part in the rebellion from exercising any political power here or elsewhere now and forever; but as that clause does not seem to effect that purpose, and will probably effect nothing at all. I do not think it is of any consequence that it should have a place in the measure. I hope another clause will be placed there by the amendment suggested by the Senator from New Hampshire. I shall be very glad to see that adopted either as an amendment to my proposition, if it should prevail, or, if not, as an amendment to the original proposition. I have seen other suggested amendments which I should like to have prevail. The Senator from Nevada [Mr. Stewart] has submitted a proposition which in my judgment is of the most important and essential character. Could my voice and my vote prevail to give efficacy to his proposition, he should not fail to have it. I am for suffrage to our friends in the South, the men who have stood by us in this rebellion, the men who have hazarded their lives and all that they hold dear to defend our country. I think our friends, the colored people of the South, should not be excluded from the right of voting, and they shall not be if my vote and the votes of a sufficient number who agree with me in Congress shall be able to carry it. I do not agree in this particular with the Senator from Michigan. He yields to the provision in the committee's resolution on the subject reluctantly, because he does not believe three fourths of the States can be got to ratify that proposition which is right and just in itself. My own opinion is that if you go down to the very foundation of justice, so far from weakening yourself with the people, you will strengthen yourself immensely by it; but I know that it is not the opinion of many here, and I suppose we must accommodate ourselves to the will of majorities, and if we cannot do all we would, do all we can. I propose for myself to contend for all I can get in the right direction, and finally to go with those who will give us anything that is beneficial. That is my doctrine. I wish and I hope that on due reflection the Senate will adopt the amendment of the Senator from Nevada, at least as an alternative to some of these propositions, leaving the States to take his proposition if they will in lieu of the one we give to them. I should like to see even that, for I believe they would take his in preference to the one we shall probably give them. But, sir, notwithstanding I say all this, I am not finding fault with the doings of the com- . 2770 THE CONGRESSIONAL GLOBE May 23, mittee. I know the difficulties of their task. I know the great variety of opinions that prevail on this subject. I know its importance. I know that the committee has been most unreasonably assailed from outside because it has not earlier brought forth its measures. My only wonder is that they could finish their labors and bring forward these propositions one after another as they have done, and so satisfactorily as they have. When I offer this amendment of mine, I only do it for the consideration of the Senate, and not because I have the vanity to suppose that I could improve anything they had agreed upon. It may be that after men have struck out a course of proceeding, have broken the road, and submitted their doings to us, it is easy to criticise and sometimes easy to amend. That is all I claim. I do not suppose that if I had been on the committee I could have drawn up a proposition so good as this is that they have brought forward; and yet it seems to me, having the benefit of what they have done, that looking it over, reflecting upon it, seeing all its weak points, if it have any, I could, without having the ability of that committee, suggest amendments that would be beneficial. I trust I have done so, or

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certainly I would not have brought this forward. If it meets the approval of the Senate I shall be glad, because to me it seems to be better; but if not, I shall go for their proposition. All I wished to do now was barely to bring my amendment before the Senate and submit it for their consideration. Hereafter, perhaps, I may or may not have something more to say about it. Mr. WILSON. If the Senator from Ohio intends to press this amendment to a vote I trust he will consent to some modification of it. In the second section I think the word "property" should be stricken out. That section reads, "no class of persons as to the right of any of whom to suffrage discrimination shall be made by any State shall be included in the basis of representation, unless such discrimination be in virtue of impartial qualifications founded on intelligence or property, or because of alienage, or for participation in rebellion or other crime." I certainly think we ought not to put the word "property" as a qualification for suffrage in this country into the Constitution of the United States. If we are to have anything of that kind I think it should be a qualification on account of taxation, not on account of property, but taxation, paying a proportionate part to support the Government. I do not think such a qualification as this should go in the Constitution, and I cannot vote for this proposition as against the proposition of the committee. Then there are words in the third section that I think should be stricken out. Those words are, "and shall not be taxable by any State." Mr. WADE. Those words are not in the amendment I have offered. They were in the amendment as first submitted and printed, but they are stricken out of the amendment as now offered. Mr. FESSENDEN. I think the proposition had better be printed as it now stands amended. Mr. WADE. Very well. Mr. WILSON. I am very glad that the Senator from Ohio has stricken out those words which were in his original amendment. I wish simply to say upon that point, that for one, I can consent to vote for no proposition that does not go squarely to the country, that the national debt hereafter created shall be taxed like all other property. I do not believe in the wisdom of having two or three thousand millions of capital in this country placed beyond taxation. We did it in time of war, in an hour of need. I will adhere to that with all fidelity. It is as sacred as any pledge we ever made, as sacred as the blood of our soldiers. But I will consent to no measure that change, one dollar of that property into a new loan, and does not subject it to taxation equally and like all other property. I believe the safety of the debt itself demands that. Mr. WADE. Nothing more need be said about taxation, for that is not in the amendment I have offered. It was in the printed copy I first submitted; but on consideration I struck that out, thinking the amendment would be better without it, more acceptable to the Senate, and certainly more acceptable to myself. As to the suggestion of the Senator from Massachusetts that the word "property" should be stricken out I will say that there is no member of the Senate more opposed to making a property qualification for voting than I am. I never would vote for it nor submit to it if I could help it. But it is presented here only as one of those alternatives which the States may adopt. Some of them have adopted it before, and may do so again. It is only to be left optional with them to do this and other things. We do not recommend that they should do it; we do not recommend even an educational basis; we simply present the matter to the States. As a general thing the bias of my mind is entirely in favor of free suffrage to every man who is subject to the laws, in the language of Madison. That is the principle which would govern me if the matter were left to me; but we are now legislating with regard to the States, giving them a right to fix this matter for themselves. If the State of which I am a member, where I could reach it, should undertake to prescribe a property qualification, you would find me opposed to it all the time. I am not very averse to an amendment of my proposition which shall strike out the word "property." I simply thought it would be as well to leave that matter to the States and not to restrict their representation if they should adopt a property qualification applied to all, giving equal suffrage, making no class discrimination. I am not very much opposed to striking out the word " property;" I should not like to lose a vote for my amendment on that account, although I did not suppose it was placed in my amendment in such a position as to subject me to the suspicion of being in favor of the property qualification. If the Senate is opposed to it, I am perfectly willing that that word shall be stricken out, as I think it can be without mutilating my amendment. I now move that the amendment be printed in the form in which I have submitted it. The motion was agreed to. Mr. WILSON. As amendments are being offered, I desire to submit an amendment, for the purpose of having it printed, to the second section of the article reported by the committee, and also an amendment to the third section. Mr. JOHNSON. I ask for the reading of them. The Secretary read the amendment proposed by Mr. Wilson to the second section, which was to strike out the

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section and in lieu of it to insert the following words: Representatives shall be apportioned among the several States according to their respective numbers; but if in any State the elective franchise is or shall be denied to any of its inhabitants, being male citizens of the United States, above the age of twenty-one years, for any cause except insurrection or rebellion against the United States, the basis of representation in such State shall be reduced in the proportion which the number of male citizens so excluded shall bear to the whole number of male citizens over twenty-one years of age. Mr. WILSON. Before the other amendment is read, I wish to state in a single word the distinction between the proposition just read and the section of the committee's proposition for which it is offered as a substitute. In the original proposition the language is "citizens of the State," in this it is "inhabitants being male citizens of the United States." I think the distinction is of vital importance. Now, let the Secretary read my other proposition. The Secretary read the proposed amendment, which was to strike out section three, and in lieu of it to insert the following: That no person who has resigned or abandoned or may resign or abandon any office under the United States, and has taken or may take part in rebellion against the Government thereof, shall be eligible to any office under the United States or of any State. Mr. WILSON: I will simply say in regard to this proposition which I desire to have printed, that I am in favor of striking out the third section of the proposition of the committee, and I prefer simply to strike it out rather than to insert anything in place of it; but I submit this motion so that if we are to have anything inserted in its place, we shall give the people an opportunity of voting upon a proposition which says that the men who resigned or abandoned offices under the Government of the United States, whether civil or military, and engaged in rebellion, shall never hold any office under the Government of the United States, or under any State. Mr. FESSENDEN. I wish to suggest to my friends that if they desire to offer amendments it would be better to move each amendment separately, either in the place of some section in the resolution reported by the committee, or as an addition. The difficulty of presenting propositions together as a substitute for the whole is that we are compelled to vote upon them as a whole. If a Senator wishes to substitute one provision for another, let that be a motion distinct by itself. Mr. WILSON. Mine is. Mr. FESSENDEN. But the honorable Senator from Ohio has moved a substitute for all the five sections of the article reported by the committee. Perhaps I might vote for some one of the sections he proposes, but I cannot for all together. The purpose can be accomplished by simply moving one section as a substitute for another, or by offering his amendments as additional provisions. Mr. WADE. Well, I can take that course. The PRESIDING OFFICER, (Mr. Hendricks in the chair.) But one of the amendments proposed by the Senator from Massachusetts is now in order. The Chair understands the Senator, however, to propose his two amendments simply with a view of their being printed. Is there any objection to the reception of both amendments with a view to their being ordered to be printed? Mr. CLARK. I suppose these amendments are all offered for the purpose of bringing them to the knowledge of the Senate and having them printed, and that no rule of the body will be enforced upon them. The PRESIDING OFFICER. If that be the unanimous wish of the Senate, it will be so ordered. Mr. CLARK. I propose to offer as an amendment to the third section the proposition which I read some time ago to the Senate, but it would not be in order for me to do so now if any rule of the Senate was to be enforced upon it. I desire to offer an amendment to the third section, for the purpose of having it printed. The PRESIDING OFFICER. If there be no objection the order will first be made to print the amendments submitted by the Senator from Massachusetts. The Chair hears no objection. Mr. CLARK. I desire to offer this as a substitute for the third section of the committee's resolution: No person shall be a Senator or Representative in Congress, or be permitted to hold any office under the Government of the United States, who, having previously taken an oath to support the Constitution thereof, shall have voluntarily engaged in any insurrection or rebellion against the United States, or given aid or comfort thereto. I wish also to propose an amendment to the section in regard to the rebel debt, in these words: Debts incurred in aid of rebellion or war against the United States are illegal and void shall not be enforced in any court, or assumed or paid by the United States or any State, or by its authority; nor shall any compensation ever be made for the loss or emancipation of any slave.

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I prefer to make the provision in regard to the rebel debt a little more specific and to go a little further. I am not content to say that it shall not be paid by the United States or any State, but I want to say that it shall not be enforced in any court, either in an action or by way of set-off; nor shall any debt incurred by any city or municipal corporation in aid of rebellion ever be paid. I do not want that any citizen of my State or any citizen of any other 1866 THE CONGRESSIONAL GLOBE 2771 loyal State who shall go down into that country shall ever be taxed to pay one cent of the rebel debt, and I want to say to the world that every particle of it is to be forever repudiated and remain unpaid, that we will not acknowledge it or suffer any of our courts to enforce it. Mr. JOHNSON. Was the first amendment of the Senator proposed as a substitute for the third section? Mr. CLARK. Yes, sir. The third section does not seem to be satisfactory to a great many persons, and yet I think something of the kind, looking toward the exclusion of many of those who participated in the rebellion from participation in the administration of our Government, is desirable. The section as it stands in the committee's plan provides that no person who has been engaged in the rebellion shall be allowed to vote until 1870. That is about four years off. Now, it will probably be a year and a half before this amendment can be agreed to by the States; they will be allowed to have until that time; and then it will only be an exclusion for a couple of years. I am afraid that the obstruction they will make to the adoption of the plan will be more serious than all the advantage we can derive from it. I much prefer that you should take the leaders of the rebellion, the heads of it, and say to them, "You never shall have anything to do with this Government," and let those who have moved in humble spheres return to their loyalty and to the Government. Mr. HOWARD. Allow me to suggest to the Senator from New Hampshire, by way of amendment to the amendment offered by him to the third section, that he strike out the word "voluntarily," so as to exclude that class of persons absolutely without qualification. Mr. CLARK. I shall have no objection to any amendment of that kind. Mr. HOWARD. Any person who has taken an oath to support the Constitution as a member of Congress or as a Federal officer must be presumed to have intelligence enough if he entered the rebel service to have entered it voluntarily. He cannot be said to have been forced into it by pressure; but as the amendment of the honorable Senator now stands it leaves open as a question of fact whether he actually entered the rebel service voluntarily or involuntarily. Mr. CLARK. I will adopt the suggestion of the Senator from Michigan, and I will adopt any other suggestion that seems proper in regard to this amendment. I throw it out merely as a general idea or proposition. It may not be satisfactory to all minds; it may need amendment; it may possibly go too far; but I throw it out to the Senate and desire to have it printed as embracing a general proposition the main feature of which I think should be agreed to, and as a substitute for the third section proposed by the committee. Mr. HOWARD. I am inclined to think I will support that amendment with that modification. Mr. CLARK. I do not propose further to discuss the subject, but submit the amendment and ask that it be printed. The PRESIDING OFFICER. The amendment proposed by the Senator from New Hampshire will be printed, unless there he objection. Mr. BUCKALEW. I desire also to submit an amendment with a view to have it printed. The PRESIDING OFFICER. The Chair will receive the amendment and an order will be entered for its printing if there be no objection. The amendment of Mr. Buckalew is to add to the resolution the following additional section: Sec. 6. This amendment shall be passed upon in each State by the Legislature thereof which shall be chosen, or the members of the most popular branch of which shall be chosen next after the submission of the amendment, and at its first session; and no acceptance or rejection shall be reconsidered or again brought in question at any subsequent session; nor shall any acceptance of the amendment be valid if made after three years from the passage of this resolution. EXECUTIVE SESSION. Mr. GRIMES. I move that the Senate proceed to the consideration of executive business. The motion was agreed to; and after some time spent in executive session the doors were reopened, and the Senate adjourned.

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2798 THE CONGRESSIONAL GLOBE May 24, RECONSTRUCTION. The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment offered by Mr. WADE. Mr. STEWART. Mr. President, I am satisfied that it is impossible for this Congress to fully agree as to what is expedient to be done to harmonize factions and restore peace to our distracted country. Every one is liable to estimate the sentiments of the whole country by the views of a few friends or a small portion of his constituents, modified by his own peculiar ideas and wishes. This has and will continue to produce an irreconcilable conflict of opinions upon all questions of mere expediency. There is very little difference of opinion among Union men as to what ought to be done if we had the power to do it. I have always been of the opinion that it was expedient to do right. In this case we must agree as to what is right and do it, for we cannot agree as to what is expedient or what is likely to return A, B, or C to Congress. The Union party are agreed that all men are entitled to life, liberty, and the pursuit of happiness, and they will indorse any necessary means to secure these inalienable rights to every American citizen. The more direct and positive the plan the better. All digressions from principle or compromises of human rights, whether by Congress or the President, only involve us in new difficulties and increase our embarrassments. The President's plan of restoration was unsatisfactory, because it ignored the rights and excluded from constitutional liberty four million loyal citizens guilty of no offense but fidelity to the Government, and at the same time deprived the friends of the Union of the cooperation of these loyal citizens in maintaining the integrity of the Constitution, the honor of our brave soldiers, and the financial burdens of the war; because it placed the State governments of the South in the hands of the very men who plunged the country into war for secession and the extension of slavery, and because it admitted into Congress an increased representation of the disloyal elements of the rebellion. Yet it was better than no plan, no restoration, no Union, and no peace. The paramount importance of speedy restoration made me hesitate to condemn the plan of the President for want of a better. I was unwilling to pull down without the material at hand with which to rebuild. But in the progress of events, two noble sentiments became manifest to me upon which the people of the loyal North might unite protection for the Union and the friends of the Union and mercy to a fallen foe. The attainment of these humane objects promised restoration and peace. I reflected seriously upon a solution of our difficulties by an appeal which 1866 THE CONGRESSIONAL GLOBE 2799 addresses itself only to the most Christian qualities of humanity, and examined with great anxiety every plan presented. I found none which promised security for the future and protection for the friends of the Government, and at the same time extended mercy to its enemies. Every proposal was wanting either in justice or mercy. Mercy pleaded generous amnesty; justice demanded impartial suffrage. Both were buried beneath an ocean of prejudice. But the voice of an enlightened press and the arguments of earnest men in Congress inspired me with the hope that a direct proposition for a settlement of the questions at issue might finally succeed. I proposed pardon for the rebels and the ballot for the blacks. The general plan was, and still is, approved by the loyal press with no important exception, while every scheme based upon expediency alone has disappeared like the mist of the morning before the rising sun. Although the advocacy of the resolutions subjected me to some invidious criticisms by persons who judge the motives of others by their own, yet no one has attempted an argument against the humanity and justice of the propositions. If those who have always entertained the same views upon all subjects cannot vote for my resolution because they think it inconsistent for me to advocate negro suffrage, I shall be satisfied if I can obtain the votes of those only who have held themselves open to conviction and have sometimes changed their opinions. Give me the votes of those who have changed with the progress of events during the last six years, and the balance may vote as they please. Those who, in the language of Mr. Lincoln, "adopt new views whenever they appear to be true views," are the only persons wise or useful in this age of progress. The world moves, and those who do not perceive it are dead to the living issues of the day. I have always advocated the necessity of taking the world as we find it, and following the logic of events. The development of new facts is constantly exploding old theories. The trouble is that some men do not seem to comprehend the new facts. The attempt to apply the theories of slavery to a condition of freedom is the most dangerous evil of the age, yet those who do this boast of their consistency. They were educated to believe that a negro was a slave, possessing no rights that a white man was bound to respect, and they believed it still, and they are astonished at the inconsistencies of the world and its tendency to recognize the

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rights of man. In advocating this plan my only hope of success is predicated upon the principles involved, and although it may receive no favor and few votes now, I am profoundly impressed with the conviction, that if this Union is ever restored, it must be done with impartial suffrage and general amnesty. Gentlemen on all sides freely admit the justice of these principles, but express a fear that the country is not yet prepared to meet the issue. Let us not deceive ourselves; the people understand these questions better than we suppose. The leading minds of the nation have proclaimed from the beginning the doctrine of these resolutions. The people are in advance of Congress in their demands for justice, and in their magnanimous generosity to a vanquished enemy. All they demand is security for the future, and with it they proceed to the work of restoration "with malice toward none, with charity for all." To start right in this matter it is only necessary to adhere to first principles, and constantly bear in mind that— "Mankind are all by nature free and equal, Tis their consent alone gives just dominion." Protection and allegiance are reciprocal. It is the duty of the Government to protect; of the subject to obey. Where both these duties are performed by the respective parties, peace and order must follow. Monarchical government is founded upon the idea that the sovereign is the source of all power and the guardian of the rights of the people. Republican government is founded upon the idea that the people are the only source of legitimate authority and the guardians of their own rights through the instrumentality of the ballot. The theory of monarchical government is that the sovereign only can be trusted; the theory of republican government is that the people must be trusted. Monarchical and republican Governments are the only Governments tolerable among men. The mixed forms of oligarchies and aristocracies are only a multiplication of tyrants to prey upon the people. Our fathers established a republican Government on the representative basis, and declared that all power emanated from the people, and that all men were equal in the right to exercise that power in a constitutional way at the ballot-box. But in practice they failed to come up to the high standard of their theory; they even tolerated slavery as an unavoidable evil, and from a supposed necessity ignored all the civil and political rights of the colored men, and even counted him as a chattel. It was a declaration of rights for all men, but a Government for white men only. The theory was good, the practice in this respect fatally defective. Disfranchisement and slavery in a portion of the Republic produced the results which might have been expected. The master exercised, both in the local and General Government, the power belonging to him as a freeman and the power belonging to his slaves. This created an inequality in the beginning. The slaveholder was more powerful than the non-slaveholder. This inequality and violation of republican principles produced arrogance and intolerance on the part of the slaveholding South, and jealousy and hatred on the part of the non-slaveholding North. Free labor was odious to the southern aristocracy, slave labor was still more odious to the Democracy of the North. For a time an effort was made by our statesmen to keep up a balance of power between the slave and non-slaveholding States, and all manner of expediencies were attempted to compromise and reconcile the irrepressible conflict between slavery and freedom, but all to no purpose. Neither felt safe, or, indeed, was safe, while its antagonistic principle existed in the Government. The inevitable conflict came, and after four years of death, carnage, and desolating war, democracy was triumphant, and the aristocratic institutions of the South, based upon slavery and inequality of human rights, were overthrown and utterly crushed. The triumph of arms was complete. The question now presented is, shall the triumph of democratic principles be equally so? There are two great obstacles in the way, both based upon passion and prejudice, and each seems nearly insurmountable. One is hatred of rebels; and a demand that they shall be disfranchised and enslaved — for disfranchisement is slavery. The other is hatred of the negro, and a demand that he shall be disfranchised and robbed of the power of self-protection and virtually reenslaved. The great mass of the people of the South are either rebels or blacks, and if we yield to either demand the struggle is not ended. The democratic principle of the equality of all men in the right to protect themselves at the ballot-box will still be denied. The party left in power, whether it be black men or white men, will soon display all the meaner qualities of petty despotism, intolerance, arrogance, contempt for labor, and above all a fierce hatred for the democratic protective principle of the equality of man. If we yield to both these demands, and disfranchise both blacks and whites, what will become of our free Government, for which we were willing to sacrifice the last dollar and the last man? I am aware with what effect the argument for disfranchisement of rebels can be urged to the soldier, still heated with the conflict of battle; to the widows and orphans, destitute and sorrowing beneath the afflictions brought upon them by a wicked and cruel rebellion; with the laboring masses of the North, still smarting under the insults heaped by southern aristocracy upon the "mudsill" democracy of the loyal States — in short,with every loyal man who loves the Union and hates its enemies. But it is not the part of

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men and Christians to appeal to these most natural sentiments of the human heart unless it be necessary to continue the conflict for the attainment of a great principle. Now is the time to declare for human rights and the equality of man before the law, and if that be still denied no human power can stay the conflict. But can we not now claim that the loyal men of this nation by their valor and by their sacrifices have won not only for themselves but for every man in all this broad land the glorious right of self-government, and that they and their posterity are to reap a rich harvest of blessings as the fruits of the free institutions they have rescued? May we not say to the South, "It was not your young men whose lives we sought, it was not your property we desired to destroy, but we found these sheltering and protecting and hedging about an institution in conflict with human liberty, and in conflict with the Union, and in destroying it we were compelled to overthrow its defenders; but if you have ceased to defend it and war upon the Union we will now cease to harm you?" All we want is justice for all men, and we will become the advocates of mercy for all men and amnesty and forgiveness for the past and a promise of friendship for the future. Let justice and mercy stand together,and the demands of each are satisfied. The quality of mercy is not strained; It droppeth as the gentle rain from heaven Upon the place beneath; it is twice blessed; It blesseth him that gives and him that takes; 'Tie mightiest in the mightiest: it becomes 'The throned monarch better than his crown; His scepter shows the force of temporal power, The attribute to awe and majesty, Wherein Doth sit the dread and fear of kings; But mercy is above this sceptered sway; It is enthroned in the hearts of kings; It is an attribute to God himself: And earthly power doth then show likest God's, When mercy seasons justice." Let justice be done and then it becomes the duty of every loyal man to invoke mercy even for those who have attempted the destruction of our free institutions. We will then reflect that the South is not alone responsible for slavery and all its woes; that the North and civilized Europe have all played a part in planting this vile institution upon the most favored section of our common country; and that the whole nation has been clothed in sackcloth and ashes for this great crime. When the evil is removed and the rights of man acknowledged we will cease to inquire who is most to blame or who is most guilty, but we will labor to forget the past in view of the bright prospect of universal peace and universal justice. But while the war lasts, whether it be a conflict upon the battlefield or at the ballot-box, all men loyal to equal rights and even-handed justice will be arrayed in fierce antagonism with the enemies of liberty. But it is said that the negro is ignorant. Grant it. That he is inferior to the white. Grant it. That the great mass of them will not vote intelligently. Grant it. But what are you to do with him? He must either exercise his own political rights or somebody must exercise them for him. You once trusted the duty of exercising both the civil and political rights of the blacks to the whites and it came near destroying every spark of republicanism they ever possessed. It destroyed all their love for democratic institutions, and caused them to make almost superhuman efforts to destroy the best democratic-republican Government ever organized. It is now a fixed fact that it is not safe to add to the political and social power of the white man the political and social power of the black man. The white man cannot exercise that amount of power and remain a friend of free institutions; hence it becomes a necessity either to destroy the negro so that he shall no longer be a source of power to corrupt the whites, or to trust him with his own political and civil rights. One thing is certain, that the negro must have the ballot or have no friends and being poor and friendless, and surrounded as he is by enemies, his fate is extermination. 2800 THE CONGRESSIONAL GLOBE May 24, But give him the ballot, and he will have plenty of white friends, for the people of the United States love votes and office more than they hate negroes. I need not allude to the kindly feelings the ballot secures for the poor, for you have plenty of illustrations at every election. There are many classes of poor people in the North who would be little better than slaves but for the power of the ballot, before which not only politicians but merchant princes and millionaires tremble; and the mighty Executive of forty million people bows in humble

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submission to the omnipotent power of the ballot. In a republic it is mightier than both pen and sword. Before slavery was abolished the master was interested in protecting the slave from ruffianism and violence, but now he has no protection but the sword or the ballot. We will not give him the former. We want no more blood. We must give him the latter or betray him from slavery, not to liberty, but to destruction. We talk of giving equal civil rights, but he answers in the language of the poet— "So let them ease their hearts with prate Of equal rights which men ne'er knew; I have a love for freedom too." Give him the ballot and he will secure his own freedom, which includes all the balance. Freedmen's Bureaus, civil rights bills, are all very well in their way, but very expensive in their operation. They can effect very little in protecting or governing four million people. The government of a Freedmen's Bureau is not self-government, and the sooner we commence to give these people self-government the better. Immediate and universal suffrage may not be wise, but what danger can there be to allow all the negroes to vote with like educational, intellectual, and moral qualifications with the whites hereafter to become voters. If the rising generation of whites are unable to compete on equal terms in these respects with their late slaves, the negro must be regarded as superior. But there is no question of competition in it. It is simply a question of self-protection, and the negro must have the ballot for his own protection, and it must come to this before the conflict will cease. The whites who have been in this rebellion must also have the ballot and full enfranchisement or they must be driven out of the country, for if you retain them here disfranchised enemies, the extraordinary powers necessarily devolved upon the few whom you trust with political rights must make them tyrants. The principle is that a man to be free must exercise political power for himself. If he is not allowed to do this he is a slave. If he is allowed to do more he is to that extent a despot. Every attempt to govern the people of any State by a minority, however loyal that minority may be, is a mockery on republican institutions and will inevitably produce anarchy and discord. We must either abandon our principles or repudiate the idea of dealing with irresponsible minorities and calling them the people. There will be no peace or prosperity in Maryland, Missouri, or Tennessee until the people are enfranchised. But we are told that if the rebels are allowed to vote those States will fall immediately into disloyal hands; that the power of those States will be used to embarrass the Government and to degrade and persecute loyal men. This is undoubtedly true if the rebels only are enfranchised; but that they will ultimately, and at no distant day, achieve the ballot no sensible man can doubt. In their struggle to obtain this, so necessary for their protection, millions of the American people will sympathize, aid, and approve their efforts, for the principle that a white man (who is allowed to live) ought to vote is too deep-rooted in the nature of the American people to be ignored or repudiated. But they tell us when this is done the life and liberty of every loyal man, both black and white, is in jeopardy. Grant it. Nobody is insane enough to doubt it. But what is the remedy? There are but two: military despotism by the General Government, or an extension of the franchise to the loyal as well as the disloyal; for in each of those States the majority of the whole people are today acknowledged to be loyal; and whether we are in favor of negro suffrage or not is not the question. The question is, shall this Government be in loyal or disloyal hands — in the hands of its friends or the hands of its enemies? It is too late for the Republican party to dodge the issue. There have been too many speeches made in this Congress in favor of negro suffrage to deny that it is a part of the Republican creed. There have been too many votes in this Congress sustaining the principle of suffrage to admit of any doubt of the real design and purposes of the Union party. If we deny our principles the proof of our insincerity will overwhelm us before the people. There is nothing left, if we would have a party, but to affirm and justify our principles. Any attempt to hide them is prima facie evidence that they are contraband of political warfare, and subject to confiscation before the tribunal of the people. I was slow in committing myself to the necessity of negro suffrage. My constituents were opposed to it; my education and mode of thinking had been opposed to it; but when I found the Union party committed to it; when I was thoroughly convinced that it alone would protect the negro and redeem the pledge of the Government that he should be free; when I was forced to the conclusion that the fifteen original slave States must shortly be handed over to the enemies of the Government to aid the Democracy in repudiating the national debt, and, perchance, paying the confederate debt, in making loyalty odious and treason honorable, in rewarding traitors and persecuting Union men, unless we extended the ballot to the friends of the Union for our mutual protection, I was resolved to meet the issue, and meet it squarely. Any attempt to conceal our designs will be proof positive of a conscious weakness and a want of faith in the correctness of our principles. Mr. SAULSBURY. I desire to ask the Senator a question. Mr. STEWART. I prefer not to be interrupted.

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Mr. SAULSBURY. Does the Senator from Nevada say that the Democratic party of this country would, if they had it in their power, repudiate the national debt or would assume the confederate debt? I should like a frank answer. I only refer to it because I observe that the Senator has repeated an intimation which I have seen in the public press. Mr. STEWART. I will answer the Senator very frankly. For myself, I think there is too much danger to run the risk of giving them the power, and I propose to retain it and not take the chances. The second section of the constitutional amendment proposed by the committee can be justified upon no other theory than that the negroes ought to vote; and negro suffrage must be vindicated before the people in sustaining that section, for it does not exclude the non-voting population of the North, because it is admitted that there is no wrong in excluding from suffrage aliens, females, and minors. But we say, if the negro is excluded from suffrage he shall also be excluded from the basis of representation. Why this inequality? Why this injustice? For injustice it would be unless there be some good reason for this discrimination against the South in excluding her non-voting population from the basis of representation. The only defense that we can make to this apparent injustice is that the South commits an outrage upon human rights when she denies the ballot to the blacks, and we will not allow her to take advantage of her own wrong, or profit by this outrage. Does any one suppose it possible to avoid this plain issue before the people? For if they will sustain you in reducing the representation of the South because she does not allow the negro to vote, they will do so because they think it is wrong to disfranchise him. Why, then, I ask, will they not sustain you in stopping the wrong at once? Why license the South to outrage equal rights for the small compensation of reduced representation? You do not license murder. Why not? Because it is a crime. Why should you barter away human rights and authorize oppression? Is that no crime? It is most evident, sir, if we gain a victory at all it will be because the people are satisfied the black loyalist ought to vote; the verdict will be for suffrage. But the verdict will be surplusage. No judgment can be entered on it in favor of human rights. The issue in the pleadings is too narrow. The relief sought cannot be granted. The rebel State governments, with all their local machinery, must at once fall into the hands of the enemies of the Union, and both the black and white loyalists must then be turned over to the tender mercies of a fierce people smarting under a thousand imaginary wrongs and burning with unquenchable vengeance. But you say you will disfranchise the rebels, and the plan of the committee proposes continuance of test oaths, disfranchisements, exclusions from Federal office, &c. The accomplishment of this involves military despotism and the utter destruction of republican institutions in the South. This only aggravates the evils, adds to the calamities of our common country; for, instead of liberating four million blacks, you will have enslaved eight million whites. The President of the United States will become Dictator as well as President — Dictator of eleven States, President of twenty-five. Since it is evident that we must either have disfranchisement and military despotism or enfranchisement and liberty, there can be no doubt of the verdict of the American people. They have had more difficult questions to decide, and have decided on the broad principles of human rights. The united voice of the loyal North demands the opportunity to settle every question that can again disturb the peace or endanger the liberties of the people or the perpetuity of the Union once for all. The patriotic sentiments echoed from the mountains of Switzerland are reechoed from the loyal American heart. Grant impartial suffrage and universal amnesty, and the great work is accomplished. I ask the Secretary to read the Swiss address. The Secretary read as follows: Address of the Swiss Conventions (Comites) (of Geneva, Belle, Neufchatel. Tessin, and Berne) in favor of the freedmen, and of the Assembly convocated at Geneva on the 29th March, 1866, by the Genevan Convention. To the President and Congress of the United States of America: Mr. President, Messrs. Members of Congress: For four years we have, as it were, lived with you, have borne your grievances, been rendered joyous at your deliverance, and have gloried in your success. When the election of Lincoln announced to the world that you had had enough of the system which abased you, enough of complicity and compromise with slavery, of man-hunting ordained by slavery, of conquests for the profit of slavery, of politics in favor of the party of slavery, we gave thanks to God. When your Union was disrupted by revolt, when your prosperity was crippled, (écroulé,) when many voices had prophesied the dissolution of the Union, we hailed the commencement of a new and a better life for your people. When military reverses menaced your noble cause, we still believed that it would not perish. When Europe lent, or seemed to lend, an intervention in favor of the South toward violating your blockades and in recognition of the rebel confederacy, we always believed that something would interpose itself between

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the design and the execution; that your grand principle would intervene, and through that you would become invincible. When it was generally believed and said that peace negotiations would render nugatory the moral results of the war, that you would compromise with the prejudices and the institutions of the South, we always believed that you would not lay down your arms until you had destroyed your real enemy, that is to say, slavery. When the death of Lincoln plunged us in mourning, we believed that Lincoln's successor would stake his honor on the continuance and the completion of his work. Finally, when you have announced to the world that the constitutional amendment was adopted, that already there was no single slave upon the soil of the Union, we have heard within expressible emotion this glorious progress, this greatest event of our age. It is this sentiment which we would manifest today as a duty. Of slight importance though the testimony may be, it shall not be said that the voice of Switzerland should not make itself heard in your 1866 THE CONGRESSIONAL GLOBE 2801 applause. You have far surpassed the hopes of those who hoped the most. At the same moment in which your trials terminated you pronounced the talismanic word of freedom. It will make itself heard throughout the New World; the Spanish treaty will be suppressed; you will annihilate Brazilian slavery. A whole race suffering in bondage shall be freed at the sound. These are rare days in the history of mankind, when polities and the Gospel move hand in hand — these days of sunshine unobscured by a cloud. After such days, in resuming the course of ordinary life, we should guard against dangers from contingencies, and set aside obstacles. To finish is more difficult than to begin; to make sure its application more arduous than the annunciation of a principle. The labors that await you today are not less important, and are more complex and difficult to surmount than those of yesterday. But the one goes not without the other. Sad will be the condition of your enfranchised slaves if you make not citizens of them. Between slavery and liberty — real liberty — there are no breathing-places. Thus, what do the enemies of the Union now predict? That freedom will destroy the freedmen; that, tired of them, you will succumb to the ennui of the fatiguing problem; that you will no longer listen to the voice of the poor negroes; that it will not matter to you whether they remain or depart, whether they live or die; that in the rude contact with your prejudices and contempt they will perish, as the Indians have perished; that your pharisaical abolition will find itself resulting in their extermination; that the pure glory of today will turn to shame on the morrow. We protest against such dark presages; we ask that they may be branded with falsehood. We know that your acts will so brand them, and very soon. The more you desire the dark question to cease troubling the United States the more you will feel that it must be disposed of. Unfinished questions have no pity for the repose of mankind. And how shall that completion be attained? But two things remain to be done: to maintain your Freedmen's Bureau and to suppress all civil and political distinctions on account of color. To refuse Federal protection to the slaves that were — a protection indispensable to the transition — is to give them up purely and simply to the laws, the administration, the tribunals of the South. It would be to decree the reestablishment of slavery with the addition of hatred, and, by consequence, of atrocity. To conserve political exclusion to the black race, as a race, would be to deny the principle, even the name, for which the North has so valiantly combated. That prudent measures should accompany the conferring of the right of suffrage in the South — that, for instance, it should be limited to those who can read and write, without distinction of color — we can well understand. But what we cannot understand, nor can any of those who teach and sustained your cause, is the exclusion of the race. If the southern States were readmitted to Congress without imposing upon them, as a condition, the equality of races, we should bitterly deplore it; we would bow the head in humility and sadness, and await in fear a recommencement of those hostilities between the South and North, between the Republicans and the Democrats, the end of which had seemed only to have come round. But what would most disturb all our hopes would be to see those freedmen who had spilled their

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blood for the defense of the Union rewarded for their devotion by being deprived of those rights which are, in all republican Governments, the appanage of those brave men who are called to bear arms for their country, at the same time that the rebels, who had torn the bosom of their country, and begged the intervention of the foreigner, not only reenjoy the rights they had before the war, but made the arbiters absolute of the fate of loyal citizens. To give to those guilty of high treason the power to reduce good citizens to the position of political pariahs is to reward treachery and to discourage patriotism — to give in to those who pronounced self-government impossible and self-annihilating. That one condition necessary to future peace should be imposed on the rebel States, the sense, namely, of the above, we doubt not you understand, for you have already imposed upon them an affirmative vote upon the amendment abolishing slavery. One step more, and your task is finished. By the side of the abolition of slavery it remains to you to equalize the races before the law. What is abolition without equality ? It remains to you to decide that the rebel States, before reentering Congress, should abolish all distinctions based on color. Political franchises in all respects should be enjoyed equally by blacks and whites. These guarantees obtained, open to them your arms and hasten toward a general reconciliation. Avoid any unnecessary prolongation of the present interregnum, (régime exceptionnel.) Add to your other glories that of reestablishing the power of your Government at the immediate close of a bitter civil war. Liberty is bold and strong; and of what use are her boldness and strength if she cannot trust and pardon? It is repugnant to us to conceive your stopping half way, and conferring upon the former slaves Liberty without equality, or, in other words, liberty without the conditions of freedom; liberty without dignity; liberty with an unopened future, without possible progress; liberty without that upon which it becomes great and attains its end; thus you would reconstitute a new slave party in Congress — further oppressions of slaves throughout the South. Seeking for peace you would reorganize war — servile war at first, for you cannot pronounce with impunity the words BE FREE; and when those whom you have declared free feel that they have neither protection nor rights, nor means of regular action, they are almost infallibly driven to employ other means. Civil war would follow. Is it possible that the blood of the blacks shed on the other side of the Potomac, that cruel oppressions, would not speed that war, and that the generous instincts of the North would not reawaken?They would complain, they would denounce iniquities, they would intervene morally, and the ancient quarrel would blaze forth again. As faithful friends we have better hopes for you. We have said much, convinced that you will easily perceive that there is a warm sympathy in the depths of our fears, and that our sincerity is strengthened by respect and by attachment. May He who has guarded you and protected you thus far continue to guard and protect you to the end; that He may empower you to finish what you have begun — to treat as follow-citizens and to love as brothers those who, thanks to you, are no longer in slavery; and that He may accomplish for you now and hereafter all those good wishes with which our hearts are filled. J. H. SERMENT, and others, for Geneva. ADOLPH CHRIST, and others, for Bâle. ROBERT LISSOT, and others, for Neufchatel. F. BIANCHETTI, and others, for Tessin. BERNARD. and others, for Berne. M. BECHET, for the Canton De Vaud. GENEVA, April 10, 1860. Mr. STEWART. How truthful the remark that "unfinished questions have no pity for the repose of mankind." While four million blacks are struggling for the ballot as the only protection known in republican Governments for life, liberty, and property; while the military arm of this Government is outstretched to enforce disfranchisement of rebels and restrain them from warring upon the life of the nation and the rights of the disfranchised blacks, gentlemen may cry, "Peace! peace!" but there is no peace. "For freedom's battle, once begun, Bequeathed by bleeding sire to son, Though baffled oft, is ever won." The contest may be lost for years if left unsettled now,but there can be no repose for this country until the principles of the Declaration of Independence are fully acknowledged and practically enforced from ocean to ocean, from the Gulf to the Lakes.

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I have often heard the appeal of earnest men in this great contest, and have too often hesitated at what seemed impractical or impossible, but before I could realize the grandeur of the design the work was accomplished. I hear the same warning voice of zealous reformers and earnest republicans proclaiming the simple truths of equal rights and generous amnesty; and as in the past the dark night of slavery and human bondage disappeared before the sunlight of humanity and justice, so in the future the clouds of prejudice and passion which envelope the rights of millions of American citizens will dissipate before the reason and patriotism of the loyal masses of the people. What guarantees shall be demanded on the restoration of the South, and by what right do we demand guarantees? In proceeding to this branch of my subject I find my own views so well expressed in an able paper from the pen of Robert Dale Owen that I avail myself of his forcible language: "To the Editor of the Chronicle: "I take exception, in these days, to no contrarieties of opinion touching the proper mode of restoring harmony between the late belligerent sections of our country. That is a problem which may tax the best energies of the wisest among us, and in regard to the solution of which the ablest may differ. But if the task before us is difficult, it is not hopeless; not, I firmly believe, doubtful even. I have faith in the people. I have faith, stronger still, that God, who forsook us not in the gloom of the rebellion, will guide us now; when the scene of combat is changed from the field of battle to the election precinct and the legislative hall. "The essential is, that we approach this great subject in a fitting spirit. It avails nothing to talk about the enormity of secession and the condign punishment it merits. The punishment of nations is in other hands than ours. If the judgments of God have not already stamped slavery as a sin and treason against a beneficent Government as a crime, in vain are the efforts of man in that direction. Nor let us, in our indignation, forget how that sin of slavery, the cause of the rebellion, originally came upon the South; against her own will; against her solemn protest. In December, 1770, the King of Great Britain commanded the Governor of Virginia, 'under pain of the highest displeasure, to assent to no law prohibiting the importation of slaves.' Virginia, in April, 1772, addressed the King in remonstrance, saying to him these remarkable words: 'The importation of slaves, a trade of great inhumanity, will endanger the very existence of your Majesty's American dominions.' Maryland and Carolina followed that lead. "But aside from this, what so unphilosophical and unjust as the spirit of the Pharisee? It is due to a geographical accident that we were not born slave-holders in the city of Charleston. Dare we assert that if we had been we should have been justter men than they, more scrupulous about living by the labor of others? Shall we stand up, in the temple of our own self-righteousness, and say, 'God, we thank thee that we are not as other men, or even as these South Carolinians?' "We can never, indeed, forget — God forbid that we should — the terrible consequences of treason; the hardships, the sufferings, the lost lives, the parents and widows bereaved, the countless thousands of homes made desolate among us. But to avert evils in the future better befits a Christian people than to avenge injuries of the past. Let us learn of the despised and the lowly. Is it we only who have injuries to requite? What were our sufferings during the war compared to the thousand wrongs perpetrated, throughout generations, against the millions of southern slaves? But though the iron entered into their souls, did they return evil for evil? Did they forget when the day of liberation dawned, the words of the text, 'Vengeance is mine, I will repay, saith the Lord?' "If there be among our people a revengeful element, let us not pander to it. If we impose conditions before we restore political rights to those who, defying law and Constitution by force of arms, became public enemies, it ought to be in defense, not in requital we impose conditions.' To a dispassionate looker-on it must seem strange that, here in the North, that should be a question at all. At the close of a four years' embittered war — producing a radical change in the legal and social condition of four million people, creating two vast antagonistic public debts, and entailing a thousand diversities of interest between millions on one side and millions on the other — it would be a thing incredible that government could be properly or safely resumed, without stipulation or precaution, as if nothing had happened. At such a juncture in our national affairs wise precautionary measures are as strictly a dictate of duty as they are clearly a matter of right." * * * * * * * * * * * * * * "To us, and not to the 'unjust aggressor' who appealed to the wager of battle and lost, belongs, at this

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time, the right to decide what guarantees are needed for the public safety, and how that 'unjust aggressor' shall be rendered 'incapable of doing mischief with the same ease in future.' Dearly we paid for that right! We shall commit a folly unparalleled in the annals of nations if we neglect to use it. "But if all things are lawful for us, all things are not expedient. Thus, though due time must be taken for the maturing and consummation of precautionary measures, yet, on the other hand, one section of a Republic containing a fourth of its inhabitants cannot, except for a season, safely be shut out from Federal representation. Therefore the political rights of the States lately in insurrection should be restored to them at the earliest day consistently with the peace and safety of the country. "The dangers attendant on unconditional restoration, which threaten that peace and safety, seem to me three in number; two of a political, the other of a financial character." I concur with Mr. Owen that the dangers to be apprehended are three in number: two political and one financial. But I classify them thus: the political dangers are, first, immediate and absolute control of the several southern State governments by persons still hostile to the Union; and second, the increased representation in Congress of the disloyal elements of the South. The first is by far the greater evil, but for it the report of the committee furnishes no remedy whatever. The second and the lesser evil is but partially provided for. It is not proposed to eradicate the evil, but if possible to diminish its extent by a small reduction of representation in the other House. I very much fear that this will rather intensify the rebel elements than induce an extension of suffrage. While the franchise is restricted to the whites the rebels will be sure of a full voice in the Senate and a united (though a reduced) vote in the House and complete control of their several State governments. The danger of a division of this immense power by the extension of suffrage would more than counterbalance the loss in the other House. They would submit to this small loss of power and attempt to obtain satisfaction therefor in a more unlimited control over the destinies of the race we have attempted to liberate. I doubt very much whether this change will benefit the black man. It relieves him from misrepresentation in Congress by denying him any representation whatever. The financial danger, so far as it depends upon an assumption or payment of the rebel debt or compensation for emancipated slaves, is properly guarded against in the fourth section of the report. But the further and greater 2802 THE CONGRESSIONAL GLOBE May 24, financial danger which threatens our national credit grows out of the political dangers which I have mentioned. The commotions and agitations, and perchance civil wars, growing out of the unsettled political questions will disturb our financial system more than the rebels could possibly do by any efforts they might make to saddle upon a loyal people a debt incurred in the interest of slavery and secession. There are but two possible modes of escape from the political dangers which menace the peace and prosperity of our country. The first is disfranchisement of rebels by military power, for it can be done in no other way. To this I am opposed, because it violates the democratic principle and is utterly repugnant to free institutions; because it is against Christianity and humanity; because it is the usual and direct road to despotism; because it has been often tried, and its fruits have been in all ages, in all times, and in all countries, the bitter dregs of slavery, tyranny, human misery, and wretchedness; and because it must inevitably result in the destruction of the Union and the liberty of the people. The second is enfranchisement of the blacks. The trying times which Mr. Lincoln thought might come when the colored man could help "to keep the jewel of liberty in the family of freedom" are upon us. Two fifths of the people of the eleven States are colored, and are instinctively loyal and real friends of the Government. This two fifths was a great drawback upon secession, and after the emancipation proclamation, in spite of all efforts to deceive the blacks, they felt that the Government was their friend, and although they may have done very little effective fighting, still they aided us and injured the enemy in a thousand ways: by giving information, by kindness to prisoners, by the moral effect of enemies at home upon the cause of secession, and by the subtraction of their labor from the rebels and adding it to the resources of the Government. After this proclamation the South became a house divided against itself, and the work of tearing down was half accomplished. Suppose today the South were united against the Government, and we became involved in a war with Great Britain or France, would we not expect a fearful struggle? But suppose we had two fifths of the people in the South as our friends, would we not regard that fact as a great acquisition of strength? Who can say that an emergency of this kind may never happen when we will need friends in the South as we did during the late war? And remember that the blacks are now free and capable of being more useful friends than they were as slaves. Suppose in settling with our enemies we should make no effectual provisions for the safety of our friends, but turn these State governments over to the late rebels, our friends would be at the mercy of our enemies and

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compelled to make terms. Would it be impossible, in that event, for our late enemies to convince our late friends that our friendship after all was of little value? And might not the act of emancipation be regarded by the blacks as a snare and a delusion rather than a blessing? Deserted by all the world, surrounded by their enemies, without means of self-protection, might they not under such circumstances sink in despair and relapse into a hopeless state of wretchedness and misery, awaiting in silence their fate of extermination, prepared for them according to the predictions of the late slave-holders? After all this might not the Union soldier in another war for liberty look in vain for the trusted black friend whom he found ministering to his wants in the darkest hours of the late rebellion? But aside from their usefulness to us in aiding to sustain the Government, dare we offend a just God by failing to redeem the solemn pledge of liberty which this nation made to the slave? Has not the late war proved a sufficient warning that nations are punished for wrong and oppression and for disregarding human rights? But you still insist the negro is ignorant and ought not to vote. Are not many of the whites also ignorant? This argument proves too much, and if practically put in force so as to exclude all ignorant men, both North and South, the reduction would be too great. But if you allow, as you must, ignorant men who are disloyal to vote, why not let ignorant loyal men vote? All that the friends of suffrage ask is, that the black should vote upon a like educational, property, and moral qualification with the white. Let the States place the standard where they will, provided a majority are not disfranchised and a government not republican set up in violation of the Constitution; but let it be impartial. We go even further, and, not wishing to disfranchise any who now vote, we propose to relieve them from restrictive qualifications which may hereafter be imposed on voters, but we insist that the ballot shall be placed within the reach of every American citizen of whatever race or color. Place any safeguards you please on the ballot, but make them impartial, and we will take the chances for the negro. Does any one suppose that the Senators and Representatives from South Carolina would not soon have a loyal constituency if the ballot were within reach of the black man? In that State over one half of the people would be a solid column (a black column, if you please,) of loyalty. Does any one doubt that there would be whites enough to join them to obtain control of the State? Suppose those who join them are mere politicians, and they go with the negroes for office and spoils, would it be the first political combination formed for that purpose, and would not those who should obtain office and power by such means be compelled to respect the loyal sentiments of their constituents in order to retain power; and would not the ordinary desire of the politician to serve his friends prompt him to make equal laws and sustain the Union? The more this question is considered the plainer it becomes. I like a platform of principles which will bear examination and investigation. The simple fact is, give the people the ballot and the rulers are their servants, withhold it and the people exist at the will and sufferance of their rulers, and this rule applies South as well as North. Suppose you should withhold the ballot from the laboring classes of the North and allow capital to legislate for labor, aristocracy to make laws for democracy, how many civil rights bills and Freedmen's Bureaus would it require to secure freedom to the masses of the people and make them contented and happy? But let Senators be warned by the grand demonstrations of the people in favor of these measures of protection for the blacks. Let this voice be understood. What does it mean? Is it difficult of interpretation? Not at all. It means that the blacks shall be free and that Congress shall demand full and complete securities for their freedom. In less than six months every Union man will see that there is no protection, no freedom, for the blacks without the ballot, and the universal sentiment of the loyal masses will demand the enfranchisement of the oppressed race. This is security for the future, self-supporting and self-sustaining security. It permits every man to protect himself, and his own self-interest will prompt him to do it well. It will not impoverish your Treasury and burden you with taxation. It will not consolidate your Government and destroy the legitimate functions of the States; but it will strengthen the foundations of the Republic and enlarge the base and prepare it for the grand superstructure which the builders of our institutions designed when they proclaimed in the Declaration of Independence the equality of every man in the right to life, liberty, and the pursuit of happiness, and the perfect equality of every man to strive to equal and to strive to excel his neighbor in everything great, good, and useful. But I am asked, would you allow the leaders of the rebellion to return to Congress to insult the loyal North with their odious presence in the councils of the nation, there to plot treason and revile loyalty? I answer, no. I would take the proper measures to prevent it. I would chain them to the ballot of the loyal blacks, and hold them in the strong grasp of a loyal people. They will not send them here. You may frame all the exclusion bills you please, but if you exclude loyalty from the ballot-box, and allow none but rebels with a small portion of loyal whites to vote, disloyalty will find expression in your national Legislature in the persons of lower and meaner men than the intellectual chieftains of the rebellion. The desire to exclude a few from office as an exception or an expression of a sentiment can accomplish no great good. It is not worth serious consideration. It is like disputing

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about an old whip in a negotiation for a first-class six-horse team. Exclusion from the franchise and office is idle. It is too difficult to accomplish, and no good results can possibly follow. We do not wish to punish the South. It has already been sufficiently scourged and humiliated by the inevitable results of a bloody war. The avenging hand of Providence has desolated and devastated their land and smitten down the first-born in every household, and if they will now let the bondmen depart from oppression in peace, with the ballot as their shield and buckler, why should we demand further vengeance? "Vengeance is mine, saith the Lord." I will not attempt a description of the horrors of the civil war brought upon the South by the crime of slavery and the conspiracy for its perpetuation. In the language of Burke, "A storm of universal fire blasted every field, consumed every house, destroyed every temple." The furnaces of retribution for the sins of the people were heated seven times hotter than they were wont to be heated, and the vials of wrath were poured out in torrents on the heads of the conspirators, consuming slavery and destroying treason. Are we not satisfied? Cruel slavery and foul treason shall be no more in America unless we revive and resuscitate the former by disfranchisement and oppressions until it breed new treason to be expiated upon our children with more terrible vengeance than the sins of the fathers have brought upon us. It is no time for crimination and recrimination. This war was not the work of man but of God. Let the North mourn her dead heroes sacrificed in the cause of liberty and humanity, the noblest cause in which man can die. Let the South mourn her dead sacrificed for the crime of slavery, and let her respect the sacrifice and go and sin no more. Let the vengeance of man be stayed. The visitations of destruction and punishment are beyond our comprehension or control. Let not our small individual wrongs and personal prejudices, too insignificant for consideration when we contemplate the grand dispensations of Providence, delay us, or stand as barriers to the consummation of the great work of enfranchisement and liberty. I proclaim as the true platform of principles, which shall survive this Congress and the present age and serve as a landmark for the future, "Peace and goodwill toward all men;" liberty and union; impartial suffrage and universal amnesty. I appeal to every Union man to declare his faith and stand by his principles; deal honestly with himself and frankly with the South. It is time they understood the full extent of our demands. The opponents of equal rights never argue the right or wrong of impartial suffrage. They assume that it is a great political crime and then argue that the Union party is committed to it. If we join issue with them on this point we must fail, for we are committed to it, and they can prove it. Upon that issue we must lose before the people. But suppose we admit what is true and cannot be denied, and justify our conduct by declaring that we are in favor of impartial suffrage because it is right, and ask our opponents, do you object? If so, why? Dare you deny protection to the friends of the Union while you demand political rights for its enemies? Dare you say that a Union soldier shall not vote, but a rebel soldier shall? Dare you say that he who fed our starving 1866 THE CONGRESSIONAL GLOBE 2804 prisoners shall not vote, but that he who starved them shall? Dare you say that this Government shall punish its friends and reward its enemies? Dare you contend that four million loyal citizens shall be outlawed and trampled under foot and allowed to perish because our enemies are exasperated against them on account of their friendship for us, and at the same time ask enfranchisement for our enemies so that they may destroy our friends, menace our liberty, and embarrass our finances? Dare you deny liberty to the loyal and claim power and freedom for the disloyal? In politics as in law, if you join issue on a false plea you will lose your cause. It is false to say we are not in favor of impartial suffrage; and if we make that issue we shall be defeated. But it is true that all men are equally entitled to life, liberty, and the pursuit of happiness, and if our enemies dare join issue with us on these great principles we are sure of an overwhelming verdict from a loyal and liberty-loving people. Suppose we declare that when the rights of man are freely acknowledged and made secure, that we are in favor of amnesty and mercy for our enemies; dare our opponents say they are for vengeance and blood? Suppose we say that we are contending for justice, and when that is secure our enemies shall enjoy all the civil and political rights of American citizens; dare our opponents say that they shall not enjoy those rights? Suppose we rise to the true grandeur of this great contest and declare that we mean justice, humanity, liberty, and Union; dare our opponents say they mean wrong, oppression, secession, and slavery? Let me appeal to the people of the South to cease contending for wrong and injustice, and learn to do right and love mercy. "Blessed are the merciful for they shall obtain mercy." Men of the South, put not your trust in modern Democracy. "Beware of false prophets which come to you in sheep's clothing but inwardly are ravening wolves." Have you not heard enough of their vain-glorious boasts of power to aid you? Did they not encourage you to rebel and promise you aid and comfort in your struggle to overthrow the Government, and did they not desert you in the hour of your greatest trial? Were they not invisible in war as they had been invincible in peace?

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Do you desire to be betrayed into another conflict with the overwhelming forces of liberty and union? Have not your efforts to destroy the Union and trample upon equal rights been sufficiently disastrous? Do you desire your homes to be again visited by war, pestilence, and famine? Has not the work of destruction satisfied you that there is a just God who takes vengeance on the oppressor and him who denies mercy to the poor and friendless? Think not that modern Democracy can shield you from the terrible retribution that awaits you if you longer deny the inalienable rights of man. A just God has declared oppression and wrong shall depart from the land, and the loyal millions who stand by the Union will execute His commands. For a time the arts of demagogues and the cohesive power of public plunder may seem triumphant, yet they do but seem. The same grand sentiment that rallied the loyal North to strike for liberty and union will still inspire the heart and nerve the arm to finish the work so gloriously begun. The little spring from which first gushed the waters of liberty has become a mighty torrent, sweeping slavery and oppression to destruction. Modern Democracy is but the flood-wood that maddens the rushing waters but cannot stay the flood. Regard not this floating trash but heed the loyal fountains from whence the torrent flows. Attempt no further obstruction of its course, but let it do its work and wash the crime of slavery from a land sacred to freedom. Attempt not impossibilities. The chains of bondage are broken, the shackles have fallen from the limbs of the slave, and no earthly power can rob him of enfranchisement and liberty, the birthright of an American citizen. Engage not in this wicked work, for the avenging hand cannot be stayed from those who still oppress. In such a conflict your own liberty is in jeopardy, and destruction and devastation threaten your country. Men of the South, let by-gones be by-gones and join in the glorious work of enfranchisement. Let your afflicted country have repose from this fearful strife. Give the ballot to the black man and retain it for yourselves and your posterity. The ballot is a gracious boon and none the less precious because enjoyed by the poor as well as the rich, the black as well as the white. It is the only guarantee of liberty. Is liberty less sweet when secured by all mankind? I appeal to the South in the name of the Father of the Revolution, in the name of justice and humanity, in the name of peace and union, and in the sacred name of Christianity itself to grant the ballot and receive the cordial friendship and fellowship of the brave and generous people of the loyal States. Let it be distinctly understood that if the evils of confiscation, disfranchisement, and military despotism come upon the South it will be because she refused to hear the truth from her friends, and refused to aid them to give her peace, but trusted to her enemies and those who would barter away her liberties in the vain hope of obtaining power for themselves. Sir, my mountain home and the bold pioneers with whom I have passed all the days of my manhood, and whom I know well, call for no more blood, no more desolation, no more widows and orphans, no more accumulation of debt, but they hope for peace, union, and liberty for all. My constituents love the country and the whole country. There is no State in the Union that is not the native land of many citizens of Nevada. Their home is in the far-off mountains, but their affections cling to every village and hamlet in America. We have lived together upon the shores of the Pacific for near twenty years. The good and bad fortunes of a miner's life have been common to us all. We have learned to appreciate and respect men from all sections, and our destinies are so interwoven in our common pursuits and common interests that the continuance of this unnatural conflict disturbs and mars the happiness of all our people. Nevada advocates everything for security, nothing for revenge; everything for political safety, nothing for partisan power. Her prosperity depends to a great extent upon friendly and cordial relations among her citizens. The restoration of the South will bring peace and happiness to Nevada, and I should not represent her if I were not zealous in that work. I deny that blood, confiscations, disfranchisement, and military despotism is any part of the platform of the Union party to which I belong. If to be a radical means to thirst for human blood, love human misery, and hate mercy, then I am no radical. If to be a radical means to love the Union, the Constitution, and the free Government of the fathers, to do justice to all men and respect the rights of all, then I am a radical. I know not what others may do, but as for me I shall labor honestly and zealously to secure the adoption of any plan which offers any hope of peace and union on the principles of justice and humanity. I shall not despair until a plan looking to revenge and partisan rule shall have been adopted; a plan based on the worst passions of our nature shall have been sanctioned by this Congress, and then I shall lose all hope of any good results from our deliberations. I appeal to Senators to consider this momentous issue in the light of reason and Christianity, to be charitable for the sins of our common humanity, to deal justly, and love mercy. I shall first offer my resolutions for amnesty and suffrage as a substitute. If I fail in that, I shall ask that they may be submitted as an alternative proposition, and if I am still unsuccessful, I will vote for the plan of the majority so long as it is a better plan than that of the President. But when Congress shall have committed itself to a platform which means either disunion or despotism, I shall await in despair the evils that threaten our country,

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hoping that an all-wise Providence may avert the pending storm. I have no disposition to find fault with the committee on reconstruction. I realize the difficulties which they have been called upon to encounter. That they have acted a noble part in their efforts to harmonize conflicting opinions no one has any just reason to doubt. I rejoice in the manner in which the report is presented and the liberal spirit manifested by the committee toward those who are anxious to aid in the perfection of their plan. I hope for good results when debate shall have terminated and final conclusions shall be presented to a generous public. I cannot believe that if Congress should finally reach the conclusion that the late rebels must he supreme in their local State governments, that they will then adopt measures to exasperate those whom they trust with the life, liberty, and happiness of the black man. If the generosity of the South is to be the only guarantee of a precarious existence that is to be secured for the negro, it is cruelty to him to enrage his master — for master he will be — with aggravating legislation. If you leave him in the lion's mouth do not exasperate the lion, but appease him if possible. If you have no means of security admit the South at once and extinguish the hope of liberty in the breast of the negro, and let him make the best terms he can for his hopeless life. The President's plan is by far the best, if Congress only aggravates and enrages the South but fails to eradicate the acknowledged evils. The President, according to Mr. Seward, is willing to take votes as a basis of representation, which differs but little from, and I think is an improvement upon, the report of the committee in that regard. He also wishes the confederate debt and claims for emancipated slaves repudiated. If nothing better can be done, let Congress take any plan that will end the conflict; but if we have principles, as we profess to have, it is our duty to affirm and vindicate them. It will be time enough to say the States will not adopt a just plan when that experiment has been tried and failed. If we are to be defeated, let us fall with our face to the foe. I have no ambition to die in an irregular or guerrilla war. My motto is civilized warfare or a square surrender. The country will not justify a distinction without a difference. If there is no difference on questions of principle there ought to be no further cross-purposes between Congress and the President. The world will brand us as factionists and our efforts as a struggle for partisan power, if we rely too much on expediency. I hope the Senate will pardon the frankness with which I have attempted to express my views. Let amnesty and suffrage be submitted, and allow each State to act separately, and if the South adopt it, the North must; and if the North does, how can the South refuse? It is safe to say she will not jeopardize her peace and security in any such way. Let the plan embody civil rights, impartial suffrage, and repudiation of both rebel debt and claims for emancipated slaves on the one hand, and universal amnesty and restoration of rebels to civil and political rights on the other hand. and the country will finish the work. And when it is done it will be well done. The PRESIDING OFFICER, (Mr. Williams in the chair.) The question is on the amendment to the joint resolution proposed by the Senator from Ohio, [Mr. Wade] Is the Senate ready for the question? Mr. HOWARD. I suggest that the discussion be postponed until tomorrow, and I make that motion, that the further consideration of this subject be postponed until tomorrow at one o'clock. Mr. JOHNSON. Is it in order to move to strike out the third section as it stands now without offering a substitute for it? The PRESIDING OFFICER. Such a motion would be in order. 2804 THE CONGRESSIONAL GLOBE May 24, Mr. JOHNSON. I make that motion. Mr. GRIMES. The question will stand, then, on that motion? Mr. JOHNSON. Yes, sir. Mr. HOWARD. I hope the vote will be taken on the motion to postpone the further consideration of the joint resolution until tomorrow at one o'clock. The motion was agreed to. Mr. SHERMAN. I have prepared a constitutional amendment, or rather an amendment to the proposition of the committee of fifteen, which more nearly meets my own idea than any proposition that has been made, and at the suggestion of others I submit it and ask that it be printed. I do not say that I shall offer it, because I desire to vote for that proposition which will combine the greatest strength, but as this expresses more nearly my own individual idea than any other, I will ask that it be printed. Mr. GRIMES. Let it be read. The Secretary read the proposed amendment, as follows: Strike out sections two and three, and insert as follows: Representation shall be apportioned among the several States which may be included within this

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Union according to the number in each State of male citizens of the United States over twenty-one years of age qualified by the laws of such State to choose members of the most numerous branch of its Legislature, and including such citizens as are disqualified for participating in rebellion. Direct taxes shall be apportioned among the several States according to the value of the real and personal taxable property situated in each State not belonging to the State or to the United States. The proposed amendment was ordered to be printed.

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1866 [May 29] THE CONGRESSIONAL GLOBE 2869 RECONSTRUCTION. The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment offered by Mr. JOHNSON to strike out the third section, in the following words: Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States. Mr. HOWARD. I hope the vote will be taken on that motion. Mr. JOHNSON. Is there anything proposed as a substitute for that section? Mr. CLARK. Your motion precludes that now. You move to strike out, simply. Mr. JOHNSON. I ask for the yeas and nays upon the amendment. The yeas and nays were ordered; and being taken, resulted — yeas 43, nays 0; as follows: YEAS — Messrs. Anthony, Buckalew, Chandler, Clark, Conness, Cowan, Cragin, Creswell, Davis, Doolittle, Edmunds, Fessenden, Foster, Grimes, Guthrie, Harris, Henderson, Hendricks, Howard, Howe, Johnson, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nesmith, Norton, Nye, Poland, Pomeroy, Ramsey, Riddle, Saulsbury, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson — 43. NAYS — 0. ABSENT — Messrs. Brown, Dixon, McDougall, Sprague, Wright, and Yates — 6. So the amendment was agreed to. Mr. HOWARD. I now offer a series of amendments to the joint resolution under consideration, which I will send to the Chair. Mr. FESSENDEN. Take them one section at a time. Mr. HOWARD. I will state very briefly what they are. I propose to amend section one of the article by adding after the words "section one" the following words, which will of course constitute a part of section one: All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside. The second amendment— Mr. FESSENDEN. Let us take a vote on the first one. Mr. TRUMBULL. The Senator had better state all the amendments. Mr. JOHNSON. I hope we shall hear them all. Mr. HOWARD. The second amendment is to amend the second section by striking out the word "citizens," in the twentieth line, where it occurs, and inserting after the word "male" the words "inhabitants, being citizens of the United States;" and by inserting at the end of that section the words "any such State." The third section has already been stricken out. Instead of that section, or rather in its place, I offer the following: Sec. 3. No person shall be a Senator or Representative in Congress, or an elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof: but Congress may, by vote of two thirds of each House, remove such disability. The following is to come in as section four: The obligations of the United States incurred in suppressing insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate. Section four, as it now stands, will be changed to section five, and I propose to amend that section as follows: strike out the word "already," in line thirty-four, and also the words "or which may hereafter be incurred," in line thirty-five, and also the words "or of war" in lines thirty-five and thirty-six, and insert the word "rebellion" in lieu thereof; and also strike out the words "loss of involuntary service or labor" in line thirty-seven, and insert "the loss or emancipation of any slave; but all such debts, obligations, and claims shall be forever held illegal and void." After consultation with some of the friends of this measure it has been thought that these amendments will be acceptable to both Houses of Congress and to the country, and I now submit them to the consideration of the Senate.

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The PRESIDENT pro tempore. The first question in order is the amendment proposed to the joint resolution by the Senator from Ohio, [Mr. WADE.] Mr. WADE. I ask leave to withdraw that amendment. The PRESIDENT pro tempore. It is still in the power of the mover, and he can withdraw it if he pleases. The amendment is withdrawn. The question now is on the amendments proposed by the Senator from Michigan. Mr. SAULSBURY. It is very well known that the majority of the members of this body who favor a proposition of this character have been in very serious deliberation for several days in reference to these amendments, and have held some four or five caucuses on the subject. Perhaps they have come to the conclusion among themselves that the amendments offered are proper to be made, but this is the first intimation that the minority of the body has had of the character of the proposed change in the constitutional amendment. Now, sir, it is nothing but fair, just, and proper that the minority of the Senate should have an opportunity to consider these amendments; and I rise for the purpose of moving that these amendments, together with the original proposition, be printed, so that we may see them before we are called upon to vote on them. Certainly there can be no graver question, no more serious business that can engage the attention of this Senate than a proposed change in the fundamental law. Mr. FESSENDEN. I will say to the Senator that if any gentleman on that side of the Chamber desires that these amendments be laid upon the table and printed, there is no objection to that. Mr. SAULSBURY. Then I will defer any further remarks, and make that motion. The PRESIDENT pro tempore. It is moved that the amendments be printed and that the further consideration of the joint resolution be postponed until tomorrow. The motion was agreed to. Mr. SUMNER. I wish to give notice of an amendment which at the proper time I intend to offer to Senate bill No. 292, entitled "A bill to provide for restoring to the States lately in insurrection their full political rights." It is to strike out all after the enacting clause of the first section and to insert a section as a substitute which I ask to have printed. Mr. JOHNSON and Mr. STEWART. Let it be read. The PRESIDENT pro tempore. The proposed amendment will be read, if there be no objection. The Secretary read it, as follows: Strike out all after the enacting clause of the first section of the bill and insert in lien thereof the following: That when any State lately in rebellion shall have ratified the foregoing, amendment and shall have modified its constitution and laws in conformity therewith, and shall have further provided that there shall be no denial of the elective franchise to citizens of the United States because of race or color, and that all persons shall be equal before the law, the Senators and Representatives from such State, if found duly elected and qualified, may, after having taken the required oaths of office, be admitted into Congress as such: Provided that nothing in this section shall be so construed as to require the disfranchisement of any loyal person who is now allowed to vote. Mr. SUMNER. I simply wish to have that amendment printed. The PRESIDENT pro tempore. The order to print will be entered. Mr. SUMNER. I also ask the unanimous consent of the Senate to introduce a bill of which no notice has been given, which I desire to have considered in connection with the other measure, as it belongs to this group of reconstruction measures. There being no objection, leave was granted to introduce a bill (S. No. 345) to enforce the amendment to the Constitution abolishing slavery by securing the elective franchise to colored citizens; which was read twice by its title. Mr. SUMNER. I move that the bill be printed and laid upon the table. The motion was agreed to.

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2890 THE CONGRESSIONAL GLOBE May 30, RECONSTRUCTION. Mr. HOWARD. I now move to take up House joint resolution No. 127. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the reconsideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States. The PRESIDENT pro tempore. The question is on the amendments proposed by the Senator from Michigan, [Mr. HOWARD.] Mr. HOWARD. The first amendment is to section one, declaring that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country. The PRESIDENT pro tempore. The first amendment proposed by the Senator from Michigan will be read. The Secretary read the amendment, which was in line nine, after the words "section one,"to insert: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. So that the section will read : Sec. 1. All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Mr. DOOLITTLE. I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment — I presume he will have no objection to it — by inserting after the word "thereof" the words "excluding Indians not taxed." The amendment would then read: All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the States wherein they reside. Mr. HOWARD. I hope that amendment to the amendment will not he adopted. Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. Mr. COWAN. The honorable Senator from Michigan has given this subject, I have no doubt, a good deal of his attention, and I am really desirous to have a legal definition of "citizenship of the United States." What does it mean? What is its length and breadth? I would be glad if the honorable Senator. in good earnest would favor us with some such definition. Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than a sojourner in the United States? If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit an assault and battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word. It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power. He is not entitled, by virtue of that, to be an elector. An elector is one who is chosen by the people to perform that function, just the same as an officer is one chosen by the people to exercise the franchises of an office. Now, I should like to know, because really I have been puzzled for a long while and have been unable to determine exactly, either from conversation with those who ought to know, who have given this subject their attention, or from the decisions of the Supreme Court, the lines and boundaries which circumscribe that phrase, "citizen of the United States." What is it?

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So far as the courts and the administration of the laws are concerned, I have supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection; but in so far as the right to hold property, particularly the right to acquire title to real estate, was concerned, that was a subject entirely within the control of the States. It has been so considered in the State of Pennsylvania; and aliens and others who acknowledge no allegiance, either to the State or to the General Government, may be limited and circumscribed in that particular. I have supposed, further, that it was essential to the existence of society itself and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them. I do not know that there is any danger to many of the States in this Union; but is it proposed that the people of Cal1866 THE CONGRESSIONAL GLOBE 2891 ifornia are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese? I should think not. It is not supposed that the people of California, in a broad and general sense, have any higher rights than the people of China; but they are in possession of the country of California, and if another people of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or treble the population of California, I ask, are the people of California powerless to protect themselves? I do not know that the contingency will ever happen, but it may be well to consider it while we are on this point As I understand the rights of the States under the Constitution at present, California has the right, if she deems it proper, to forbid the entrance into her territory of any person she chooses who is not a citizen of some one of the United States. She cannot forbid his entrance; but unquestionably, if she was likely to be invaded by a flood of Australians or people from Borneo, man-eaters or cannibals if you please, she would have the right to say that those people should not come there. It depends upon the inherent character of the men. Why, sir, there are nations of people with whom theft is a virtue and falsehood a merit. There are people to whom polygamy is as natural as monogamy is with us. It is utterly impossible that these people can meet together and enjoy their several rights and privileges which they suppose to be natural in the same society; and it is necessary, a part of the nature of things, that society shall be more or less exclusive. It is utterly and totally impossible to mingle all the various families of men, from the lowest form of the Hottentot up to the highest Caucasian, in the same society. It must be evident to every man intrusted with the power and duty of legislation, and qualified to exercise it in a wise and temperate manner, that these things cannot be; and in my judgment there should be some limitation, some definition to this term "citizen of the United States." What is it? Is it simply to put a man in a condition that he may be an elector in one of the States? Is it to put him in a condition to have the right to enter the United States courts and sue? Or is it only that he is entitled as a sojourner to the protection of the laws while he is within and under the jurisdiction of the courts? Or is it to set him upon some pedestal, some position, to put him out of the reach of State legislation and State power? Sir, I trust I am as liberal as anybody to-ward the rights of all people, but I am unwilling, on the part of my State, to give up the right that she claims, and that she may exercise, and exercise before very long, of expelling a certain number of people who invade her borders ; who owe to her no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own — an imperium in imperio; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him, but, on the other hand, have no homes, pretend to own no land, live nowhere, settle as trespassers where ever they go, and whose sole merit is a universal swindle; who delight in it, who boast of it, and whose adroitness and cunning is of such a transcendent character that no skill can serve to correct it or punish it; I mean the Gypsies. They wander in gangs in my State. They follow no ostensible pursuit for a livelihood. They trade horses, tell fortunes, and things disappear mysteriously. Where they came from nobody knows. Their very origin is lost in mystery. No man today can tell from whence the Zingara come or whither they go, but it is understood that they are a distinct people. They never intermingle with any other. They never intermarry with any other. I believe there is no instance on record where a Zingara woman has mated with a man of any other race, although it is true that sometimes the males of that race may mate with the females of others; but I think there is no case in history where it can be found that a woman of that race, so exclusive are they, and so strong are their sectional antipathies, has been known to mate with a man

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of another race. These people live in the country and are born in the country. They infest society. They impose upon the simple and the weak everywhere. Are those people, by a constitutional amendment, to be put out of the reach of the State in which they live? I mean as a class. If the mere fact of being born in the country confers that right, then they will have it; and I think it will be mischievous. I think the honorable Senator from Michigan would not admit the right that the Indians of his neighborhood would have to come in upon Michigan and settle in the midst of that society and obtain the political power of the State, and wield it, perhaps, to his exclusion. I do not know that anybody would agree to that. It is true that our race are not subjected to dangers from that quarter, because we are the strongest, perhaps; but there is a race in contact with this country which, in all characteristics except that of simply making fierce war, is not only our equal, but perhaps our superior. I mean the yellow race; the Mongol race. They outnumber us largely. Of their industry, their skill, and their pertinacity in all worldly affairs, nobody can doubt. They are our neighbors. Recent improvement, the age of fire, has brought their coasts almost in immediate contact with our own. Distance is almost annihilated. They may pour in their millions upon our Pacific coast in a very short time. Are the States to lose control over this immigration? Is the United States to determine that they are to be citizens? I wish to be understood that I consider those people to have rights just the same as we have, but not rights in connection with our Government. If I desire the exercise of my rights I ought to go to my own people, the people of my own blood and lineage, people of the same religion, people of the same beliefs and traditions, and not thrust myself in upon a society of other men entirely different in all those respects from myself. I would not claim that right. Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to society than I look upon Gypsies. I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow-citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit. Mr. CONNESS. Mr. President, I have failed to learn, from what the Senator has said, what relation what he has said has to the first section of the constitutional amendment before us; but that part of the question I propose leaving to the honorable gentleman who has charge of this resolution. As, however, the State of California has been so carefully guarded from time to time by the Senator from Pennsylvania and others, and the passage, not only of this amendment but of the so-called civil rights bill, has been deprecated because of its pernicious influence upon society in California, owing to the contiguity of the Chinese and Mongolians to that favored land, I may be excused for saying a few words on the subject. If may friend from Pennsylvania, who professes to know all about Gypsies and little about Chinese, knew as much of the Chinese and their habits as he professes to do of the Gypsies, (and which I concede to him, for I know nothing to the contrary,) he would not be alarmed in our behalf because of the operation of the proposition before the Senate, or even the proposition contained in the civil rights bill, so far as it involves the Chinese and us. The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. Now, I will say, for the benefit of my friend, that he may know something about the Chinese in future, that this portion of our population, namely, the children of Mongolian parentage, born in California, is very small indeed, and never promises to be large, notwithstanding our near neighborhood to the Celestial land. The habits of those people, and their religion, appear to demand that they all return to their own country at some time or other, either alive or dead. There are, perhaps, in California today about forty thousand Chinese — from forty to fortyfive thousand. Those persons return invariably, while others take their places, and, as I before observed, if they do not return alive their bones are carefully gathered up and sent back to the Flowery Land. It is not an unusual circumstance that the clipper ships trading between San Francisco and China carry at a time three or four hundred human remains of these Chinese. When interred in our State they are not interred deep in the earth, but laid very near the surface, and then mounds of earth are laid over them, so that the process of disinterment is very easy. That is their habit and custom; and as soon as they are fit for transmission to their own country they are taken up

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with great regularity and sent there. None of their bones are allowed to remain. They will return, then, either living or dead. Another feature connected with them is, that they do not bring their females to our country but in very limited numbers, and rarely ever in connection with families; so that their progeny in California is very small indeed. From the description we have had from the honorable Senator from Pennsylvania of the Gypsies, the progeny of all Mongolians in California is not so formidable in numbers as that of the Gypsies in Pennsylvania. We are not troubled with them at all. Indeed, it is only in exceptional cases that they have children in our State; and therefore the alarming aspect of the application of this provision to California, or any other land to which the Chinese may come as immigrants, is simply a fiction in the brain of persons who deprecate it, and that alone. I wish now to address a few words to what the Senator from Pennsylvania has said as to the rights that California may claim as against the incursion of objectionable population from other States and countries. The State of California at various times has passed laws restrictive of Chinese immigration. It will be remembered that the Chinese came to our State, as others did from all parts of the world, to gather gold in large quantities, it being found there. The interference with our own people in the mines by them was deprecated by and generally objectionable to the miners in California. The Chinese are re2892 THE CONGRESSIONAL GLOBE May 30, garded, also, not with favor as an addition to the population in a social point of view; not that there is any intercourse between the two classes of persons there, but they are not regarded as pleasant neighbors; their habits are not of a character that make them at all an inviting class to have near you, and the people so generally regard them. But in their habits otherwise, they are a docile, industrious people, and they are now passing from mining into other branches of industry and labor. They are found employed as servants in a great many families and in the kitchens of hotels; they are found as farm hands in the fields; and latterly they are employed by thousands — indeed, I suppose there are from six to seven thousand of them now employed in building the Pacific railroad. They are there found to be very valuable laborers, patient and effective; and, I suppose, before the present year closes, ten or fifteen thousand of them, at least, will be employed on that great work. The State of California has undertaken, at different times, to pass restrictive statutes as to the Chinese. The State has imposed a tax on their right to work the mines, and collected it ever since the State has been organized — a tax of four dollars a month on each China-man; but the Chinese could afford to pay that and still work in the mines, and they have done so. Various acts have been passed imposing a poll tax or head tax, a capitation tax, upon their arrival at the port of San Francisco; but all such laws, when tested before the supreme court of the State of California, the supreme tribunal of that people, have been decided to be unconstitutional and void. Mr. HOWARD. A very just and constitutional decision, undoubtedly. Mr. CONNESS. Those laws have been tested in our own courts and when passed under the influence of public feeling there they have been declared again and again by the supreme court of the State of California to be void, violative of our treaty obligations, an interference with the commerce of the nation. Now, then, I beg the honorable Senator from Pennsylvania, though it may be very good capital in an electioneering campaign to declaim against the Chinese, not to give himself any trouble about the Chinese, but to confine himself entirely to the injurious effects of this provision upon the encouragement of a Gypsy invasion of Pennsylvania. I had never heard myself of the invasion of Pennsylvania by Gypsies. I do not know, and I do not know that the honorable Senator can tell us, how many Gypsies the census shows to be within the State of Pennsylvania. The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels, which this amendment, if I understand it aright, is intended to guard against and to prevent the recurrence of. On that occasion I am not aware, I do not remember that the State of Pennsylvania claimed the exclusive right of expelling the invaders, but on the contrary may recollection is that Pennsylvania called loudly for the assistance of her sister States to aid in the expulsion of those invaders — did not claim it as a State right to exclude them, did not think it was a violation of the sovereign rights of the State when the citizens of New York and New Jersey went to the field in Pennsylvania and expelled those invaders. But why all this talk about Gypsies and Chinese? I have lived in the United States for now many a year, and really I have heard more about Gypsies within the last two or three months than I have heard before in my life. It cannot be because they have increased so much of late. It cannot be because they have been felt to be particularly oppressive in this or that locality. It must be that the Gypsy element is to be added to our political agitation, so that hereafter the Negro alone shall not claim our entire attention. Here is a simple declaration that a score or a

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few score of human beings born in the United States shall be regarded as citizens of the United States, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all my understanding and comprehension. Mr. President, let me give an instance here, in this connection to illustrate the necessity of the civil rights bill in the State of California; and I am quite aware that what I shall say will go to California and I wish it to do so. By the influence of our "southern brethren," who I will not say invaded California, but who went there in large numbers some years since, and who seized political power in that State and used it, who made our statutes and who expounded our statutes from the bench, negroes were forbidden to testify in the courts of law of that State, and Mongolians were forbidden to testify in the courts; and therefore for many years, indeed, until 1862, the State of California held officially that a man with a black skin could not tell the truth, could not be trusted to give a relation in a court of law of what he saw and what he knew. In 1862 the State Legislature repealed the law as to Negroes, but not as to Chinese. Where white men were parties the statute yet remained, depriving the Mongolian of the right to testify in a court of law. What was the consequence of preserving that statute? I will tell you. During the four years of rebellion a good many of our "southern brethren" in California took upon themselves the occupation of what is there technically called "road agents." It is a term well known and well understood there. They turned out upon the public highways, and became robbers, highway robbers; they seized the treasure transmitted and conveyed by the express companies, by our stage lines, and in one instance made a very heavy seizure, and claimed that it was done in accordance with the authority of the so-called confederacy. But the authorities of California hunted them down, caught a few of them, and caused them to be hanged, not recognizing the commission of Jeff Davis for those kinds of transactions within our bounds. The spirit of insubordination and violation of law, promoted and encouraged by rebellion here, affected us so largely that large numbers of — I will not say respectable southern people, and I will not say that it was confined to them alone — but large numbers of persons turned out upon the public highways, so that robbery was so common upon the highways, particularly in the interior and in the mountains of that State, that it was not wondered at, but the wonder was for anybody that traveled on the highways to escape robbery. The Chinese were robbed with impunity, for if a white man was not present no one could testify against the offender. They were robbed and plundered and murdered, and no matter how many of them were present and saw the perpetration of those acts, punishment could not follow, for they were not allowed to testify. Now, sir, I am very glad indeed that we have determined at length that every human being may relate what he heard and saw in a court of law when it is required of him, and that our jurors are regarded as of sufficient intelligence to put the right value and construction upon what is stated. So much for what has been said in connection with the application of this provision to the State that I in part represent here. I beg my honorable friend from Pennsylvania to give himself no further trouble on account of the Chinese in California or on the Pacific coast. We are fully aware of the nature of that class of people and their influence among us, and feel entirely able to take care of them and to provide against any evils that may flow from their presence among us. We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others. Mr. HOWARD. There is a typographical error in the amendment now under consideration. The word "State"in the eleventh line is printed "States." It should be in the singular instead of the plural number, so as to read "all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State"(not States) "wherein they reside." I move that that correction be made. Mr. JOHNSON. I suggest to the Senator from Michigan that it stands just as well as it is. Mr. HOWARD. I wish to correct the error of the printer; it is printed "States"instead of "State." The PRESIDENT pro tempore. The correction will be made. Mr. JOHNSON. I doubt whether it is an error of the printer. The PRESIDENT pro tempore. The question is on the amendment proposed by the Senator from Wisconsin to the amendment of the Senator from Michigan to the resolution before the Senate. Mr. DOOLITTLE. I moved this amendment because it seems to me very clear that there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States. All the Indians upon reservations within the several States are most clearly subject to our jurisdiction, both civil and military. We appoint civil agents who have a control over them in behalf of the Government. We have our military commanders in the neighborhood of the reservations, who have complete control. For instance, there are seven or eight thousand Navajoes at this moment under the control of General

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Carlton, in New Mexico, upon the Indian reservations, managed, controlled, fed at the expense of the United States, and fed by the War Department, managed by the War Department, and at a cost to this Government of almost a million and a half of dollars every year. Because it is managed by the War Department, paid out of the commissary fund and out of the appropriations for quartermasters' stores, the people do not realize the enormous expense which is upon their hands. Are these six or seven thousand Navajoes to be made citizens of the United States? Go into the State of Kansas, and you find there any number of reservations, Indians in all stages, from the wild Indian of the plains, who lives on nothing but the meat of the buffalo, to those Indians who are partially civilized and have partially adopted the habits of civilized life. So it is in other States. In my own State there are the Chippewas, the remnants of the Winnebagoes, and the Pottawatomies. There are tribes in the State of Minnesota and other States of the Union. Are these persons to be regarded as citizens of the United States, and by a constitutional amendment declared to be such, because they are born within the United States and subject to our jurisdiction? Mr. President, the word "citizen," if applied to them, would bring in all the Digger Indians of California. Perhaps they have mostly disappeared; the people of California, perhaps, have put them out of the way; but, there are the Indians of Oregon and the Indians of the Territories. Take Colorado; there are more Indian citizens of Colorado than there are white citizens this moment if you admit it as a State. And yet by a constitutional amendment you propose to declare the Utes, the Tabahuaches, and all those wild Indians to be citizens of the United States, the great Republic of the world, whose citizenship should be a 1866 THE CONGRESSIONAL GLOBE 2893 title as proud as that of king, and whose danger is that you may degrade that citizenship. Mr. President, citizenship, if conferred, carries with it, as a matter of course, the rights, the responsibilities, the duties, the immunities, the privileges of citizens, for that is the very object of this constitutional amendment to extend. I do not intend to address the Senate at length on this question now. I have simply raised the question. I think that it would be exceedingly unwise not to adopt this amendment and to put in the Constitution of the United States the broad language proposed. Our fathers certainly did not act in this way, for in the Constitution as they adopted it they excluded the Indians who are not taxed; did not enumerate them, indeed, as apart of the population upon which they based representation and taxation; much less did they make them citizens of the United States. Mr. President, before the subject of the constitutional amendment passes entirely from the Senate, I may desire to avail myself of the opportunity to address the body more at length; but now I simply direct what I have to say to the precise point contained in the amendment which I have submitted. Mr. FESSENDEN. I rise not to make any remarks on this question, but to say that if there is any reason to doubt that this provision does not cover all the wild Indians, it is a serious doubt; and I should like to hear the opinion of the chairman of the Committee on the Judiciary, who has investigated the civil rights bill so thoroughly, on the subject, or any other gentleman who has looked at it. I had the impression that it would not cover them. Mr. TRUMBULL. Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people. If you introduce the words "not taxed," that is a very indefinite expression. What does "excluding Indians not taxed" mean? You will have just as much difficulty in regard to those Indians that you say are in Colorado, where there are more Indians than there are whites. Suppose they have property there, and it is taxed; then they are citizens.

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Mr. WADE. And ought to be. Mr. TRUMBULL. The Senator from Ohio says they ought to be. If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is "subject to the jurisdiction of the United States." Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens. It seems to me, sir, that to introduce the words suggested by the Senator from Wisconsin would not make the proposition any clearer than it is, and that it by no means embraces, or by any fair construction — by any construction, I may say —could embrace the wild Indians of the plains or any with whom we have treaty relations, for the very fact that we have treaty relations with them shows that they are not subject to our jurisdiction. We cannot make a treaty with ourselves; it would be absurd. I think that the proposition is clear and safe as it is. Mr. JOHNSON. Mr. President, the particular question before the Senate is whether the amendment proposed by the Senator from Wisconsin shall be adopted. But while I am up, and before I proceed to consider the necessity for that amendment, I will say a word or two upon the proposition itself; I mean that part of section one which is recommended as an amendment to the old proposition as it originally stood. The Senate are not to be informed that very serious questions have arisen, and some of them have given rise to embarrassments, as to who are citizens of the United States, and what are the rights which belong to them as such; and the object of this amendment is to settle that question. I think, therefore, with the committee to whom the matter was referred, and by whom the report has been made, that it is very advisable in some form or other to define what citizenship is; and I know no better way of accomplishing that than the way adopted by the committee. The Constitution as it now stands recognizes a citizenship of the United States. It provides that no person shall be eligible to the Presidency of the United States except a natural-born citizen of the United States or one who was in the United States at the time of the adoption of the Constitution; it provides that no person shall be eligible to the office of Senator who has not been a citizen of the United States for nine years; but there is no definition in the Constitution as it now stands as to citizenship. Who is a citizen of the United States is an open question. The decision of the courts and the doctrine of the commentators is, that every man who is a citizen of a State becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State. Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power— for that, no doubt, is the meaning of the committee who have brought the matter before us — shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. I am, however, by no means prepared to say, as I think I have intimated before, that being born within the United States, independent of any new constitutional provision on the subject, creates the relation of citizen to the United States. The amendment proposed by my friend from Wisconsin I think, and I submit it to the Senate, should be adopted. The honorable member from Illinois seems to think it unnecessary, because, according to his interpretation of the amendment as it stands, it excludes those who are proposed to be excluded by the amendment of the Senator from Wisconsin, and he thinks that that is done by saying that those only who are born in the United States are to become citizens thereof, who at the time of birth are "subject to the jurisdiction thereof" and he supposes and states very positively that the Indians are not subject to the jurisdiction of the United States. With due deference to my friend from Illinois, I think he is in error. They are within the territorial limits of the United States. If they were not, the provision would be altogether inapplicable to them. In one sense, therefore, they are a part of the people of the United States, and independent of the manner in which we have been dealing with them it

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would seem to follow necessarily that they are subject to the jurisdiction of the United States, as is anybody else who may be born within the limits of the United States. But when the United States took possession — England for us in the beginning, and our limits have been extended since — of the territory which was originally peopled exclusively by the Indians, we found it necessary to recognize some kind of a national existence on the part of the aboriginal settlers of the United States; but we were under no obligation to do so, and we are under no constitutional obligation to do so now, for although we have been in the habit of making treaties with these several tribes, we have also, from time to time, legislated in relation to the Indian tribes. We punish murder committed within the territorial limits in which the tribes are to be found. I think we punish the crime of murder committed by one Indian upon another Indian. I think my friend from Illinois is wrong in supposing that that is not done. Mr. TRUMBULL. Not except where it is done under special provision — not with the wild Indians of the plains. Mr. JOHNSON. By special provision of legislation. That I understand. I am referring to that. Mr. TRUMBULL. We propose to make citizens of those brought under our jurisdiction in that way. Nobody objects to that, I reckon. Mr. JOHNSON. Yes, I do. I am not objecting at all to their being citizens now; what I mean to say, is that overall the Indian tribes within the limits of the United States, the United States may — that is the test — exercise jurisdiction. Whether they exercise it in point of fact is another question; whether they propose to govern them under the treaty-making power is quite another question; but the question as to the authority to legislate is one, I think, about which, if we were to exercise it, the courts would have no doubt; and when, therefore, the courts come to consider the meaning of this provision, that all persons born within the limits of the United States and subject to the jurisdiction thereof are citizens, and are called upon to decide whether Indians born within the United States, with whom we are now making treaties are citizens, I think they will decide that they have become citizens by virtue of this amendment. But at any rate, without expressing any decided opinion to that effect, as I would not do when the honorable member from Illinois is so decided in the opposite opinion, when the honorable member from Wisconsin, to say nothing of myself, entertains a reasonable doubt that Indians would be embraced within the provision, what possible harm can there be in guarding against it? It does not affect the constitutional amendment in any way. That is not my purpose, and I presume is not the purpose of my friend from Wisconsin. The honorable member from Illinois says that the terms which the member from Wis2894 THE CONGRESSIONAL GLOBE May 30, consin proposes to insert would leave it very uncertain. I suppose that my friend from Illinois agreed to the second section of this constitutional amendment, and these terms are used in that section. In apportioning the representation, as you propose to do by virtue of the second section, you exclude from the basis "Indians not taxed." What does that mean? The honorable member from Illinois says that that is very uncertain. What does it mean? It means, or would mean if inserted in the first section, nothing, according to the honorable member from Illinois. Well, if it means nothing inserted in the first section it means nothing where it is proposed to insert it in the second section. But I think my friend from Illinois will find that these words are clearly understood and have always been understood; they are now almost technical terms. They are found, I think, in nearly all the statutes upon the subject; and if I am not mistaken, the particular statute upon which my friend from Illinois so much relied as one necessary to the peace of the country, the civil rights bill, has the same provision in it, and that bill I believe was prepared altogether, or certainly principally, by my friend from Illinois. I read now from the civil rights bill as it passed: "That all persons horn in the United States and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens." What did these words mean? They meant something; and their meaning as they are inserted in that act is the same meaning which will be given to them if they are inserted in the first section of this constitutional amendment. But I conclude by saying that when we are trying to settle this, among other questions, for all time, it is advisable—and if my friend will permit me to say so, our clear duty—to put every provision which we adopt in such plain language as not to be capable of two interpretations, if we can. When Senators upon the floor maintain the opinion that as it now stands it is capable of an interpretation different from that which the committee mean, and the amendment proposed gets clear of that interpretation which the committee do not mean, why should we not adopt it? I hope, therefore, that the friends—and I am the friend of this provision as far as we have gone in it—that the

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friends of this constitutional amendment will accept the suggestion of the honorable member from Wisconsin. Mr. TRUMBULL. The Senator from Maryland certainly perceives a distinction between the use of the words "excluding Indians not taxed" in the second section and in the first. The second section is confined to the States; it does not embrace the Indians of the plains at all. That is a provision in regard to the apportionment of representation among the several States. Mr. JOHNSON. The honorable member did not understand me. I did not say it meant the same thing. Mr. TRUMBULL. I understood the Senator, I think. I know he did not say that the clause in the second section was extended all over the country, but he did say that the words "excluding Indians not taxed" were in the second section, and inasmuch as I had said that those words were of uncertain meaning, therefore, having gone for the words in the second section I was guilty of a great inconsistency. Now, I merely wish to show the Senator from Maryland that the words in the second section may have a very clear and definite meaning, when in the first section they would have a very uncertain meaning, because they are applied under very different circumstances. The second section refers to no persons except those in the States of the Union; but the first section refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia. Therefore the criticism upon the language that I had used, it seems to me, is not a just one. But the Senator wants to insert the words, "excluding Indians not taxed." I am not willing to make citizenship in this country depend on taxation. I am not willing, if the Senator from Wisconsin is, that the rich Indian residing in the State of New York shall be a citizen and the poor Indian residing in the State of New York shall not be a citizen. If you put in those words in regard to citizenship, what do you do? You make a distinction in that respect, if you put it on the ground of taxation. We had a discussion on the civil rights bill as to the meaning of these words, "excluding Indians not taxed." The Senator from Maryland, [Mr. Johnson] I think, on that occasion gave this definition to the phrase "excluding Indians not taxed," that it did not allude to the fact of taxation simply but it meant to describe a class of persons; that is, civilized Indians. I was inclined to fall into that view. I was inclined to adopt the suggestion of the Senator from Maryland, that the words "excluding Indians not taxed" did not mean literally excluding those upon whom a tax was not assessed and collected, but rather meant to define a class of persons, meaning civilized Indians; and I think I gave that answer to the Senator from Indiana, [Mr. Hendricks] who was disposed to give it the technical meaning that "Indians not taxed" meant simply those upon whom no tax was laid. If it does mean that, then it would be very objectionable to insert those words here, because it would make of a wealthy Indian a citizen and would not make a citizen of one not possessed of wealth under the same circumstances. This is the uncertainty in regard to the meaning of those words. The Senator from Maryland and myself, perhaps, would understand them alike as embracing all Indians who were not civilized; and yet, if you insert that language, "Indians not taxed," other persons may not understand them that way; and I remember that the Senator from Indiana was disposed to understand them differently when we had the discussion upon the civil rights bill. Therefore I think it better to avoid these words and that the language proposed in this constitutional amendment is better than the language in the civil rights bill. The object to be arrived at is the same. I have already replied to the suggestion as to the Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States; and the Senator from Maryland, if he will look into our statutes, will search in vain for any means of trying these wild Indians. A person can only be tried for a criminal offense in pursuance of laws, and he must be tried in a district which must have been fixed by law before the crime was committed. We have had in this country, and have today, a large region of country within the territorial limits of the United States, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them. They would not be embraced by this provision. For these reasons I think this language is better than the language employed by the civil rights bill. Mr. HENDRICKS. Will the Senator from Illinois allow me to ask him a question before he sits down? Mr. TRUMBULL. Certainly. Mr. HENDRICKS. I wish to know if, in his opinion, it is not a matter of pleasure on the part of the Government of the United States, and especially of Congress, whether the laws of the United States he extended over the Indians or not; if it is not a matter to be decided by Congress alone whether we treat with the Indians by treaty or govern them by direct law; in other words, whether Congress has not the power at its pleasure to extend the laws of the United States over the Indians and to govern them. Mr. TRUMBULL. I suppose it would have the same power that it has to extend the laws of the United States over Mexico and govern her if in our discretion we thought proper to extend the laws of the United States over the republic of Mexico, or the empire of Mexico, if you please so to call it, and had sufficient physical power to

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enforce it. I suppose you may say in this case we have the power to do it, but it would be a violation of our treaty obligations, a violation of the faith of this nation, to extend our laws over these Indian tribes with whom we have made treaties saying we would not do it. Mr. FESSENDEN. We could extend it over Mexico in the same way. Mr. TRUMBULL. I say we could extend it over Mexico just as well; that is, if we have the power to do it. Congress might declare war, or, without declaring war, might extend its laws, or profess to extend them, over Mexico, and if we had the power we could enforce that declaration; but I think it would be a breach of good faith on our part to extend the laws of the United States over the Indian tribes with whom we have these treaty stipulations, and in which treaties we have agreed that we would not make them subject to the laws of the United States. There are numerous treaties of that kind. Mr. VAN WINKLE. If the Senator will permit me, I wish to remind him of a citation from a decision of the Supreme Court that he himself made here, I think, when the veto of the civil rights bill was under discussion; and if I correctly understood it, as he read it, the Supreme Court decided that these untaxed Indians were subjects, and distinguished between subjects and citizens. Mr. TRUMBULL. I think there are decisions that treat them as subjects in some respects. In some sense they are regarded as within the territorial boundaries of the United States, but I do not think they are subject to the jurisdiction of the United States in any legitimate sense; certainly not in the sense that the language is used here. The language seems to me to be better chosen than it was in the other bill. There is a difficulty about the words, "Indians not taxed." Perhaps one of the reasons why I think so is because of the persistency with which the Senator from Indiana himself insisted that the phrase "excluding Indians not taxed," the very words which the Senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The Senator from Maryland did not agree to that, nor did I; but if the Senator from Indiana was right, it would receive a construction which I am sure the Senator from Wisconsin would not be for: for if these Indians come within our limits and within our jurisdiction and are civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian. Mr. HENDRICKS. I expected the Senator from Illinois, being a very able lawyer, at the head of the Judiciary Committee, to meet the question that I asked him and to answer it as a question of law, and not as a question of military power. I did not ask him the question whether the Government of the United States had the military power to go into the Indian territory and subjugate the Indians to the political power of the country; nor had he aright to understand the question In that sense. I asked him the question whether, under the Constitution, under the powers of this Government, we may extend our laws over the Indians and compel obedience as a matter of legal right, from the Indians. If the Indian is bound to obey the law he is subject to the jurisdiction of the country; and that is the question I desired the Senator to meet as a legal question, whether the Indian would he bound to obey the law which Congress in express terms extended over him in regard to questions within the jurisdiction of Congress. Now, sir, this question has once or twice been decided by the Attorney General, so far as he could decide it. In 1855 he was inquired of whether the laws of the United States regulating the intercourse with the Indian tribes, by the general legislation in regard to Oregon, 1866 THE CONGRESSIONAL GLOBE 2895 had been extended to Oregon; and he gave it as his opinion that the laws had been extended to Oregon, and regulated the intercourse between the white people and the Indians there. Subsequently, the Attorney General was asked whether Indians were citizens of the United States in such sense as that they could become the owners of the public lands where the right to acquire them was limited to citizens; and in the course of that opinion he says that the Indian is not a citizen of the United States by virtue of his birth, but that he is a subject. He says: "The simple truth is plain that the Indians are the subjects of the United States, and therefore are not, in mere right of home-birth, citizens of the United States. The two conditions are incompatible. The moment it comes to be seen that the Indians are domestic subjects of this Government, that moment it is clear to the perception that they are not the sovereign constituent ingredients of the Government. This distinction between citizens proper, that is, the constituent members of the political sovereignty, and subjects of that sovereignty, who are not therefore citizens, is recognized in the best authorities of public law." He then cites some authorities. Again, be says: "Not being citizens of the United States by mere birth, can they become so by naturalization? Undoubtedly.

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"But they cannot become citizens by naturalization under existing general acts of Congress. (2 Kent's Commentaries, page 72.) "Those acts apply only to foreigners, subjects of another allegiance. The Indians are not foreigners, and they are in our allegiance without being citizens of the United States." Mr. JOHNSON. Whose opinion is that? Mr. HENDRICKS. That is the opinion of Mr. Cushing, given on the 5th of July, 1856. I did not intend to discuss this question, but I will make one further reply to the Senator from Illinois. When the civil rights bill was under consideration I was of the opinion that the term "not taxed" meant not taxed; and when words are plain in the law I take them in their natural sense. When there is no ambiguity the law says there shall be no construction; and when you say a man is not taxed I presume it means that he is not taxed. I do not know any words that express the meaning more clearly than the words themselves, and therefore I cannot express the meaning in any more apt words than the words used by the Senator from Wisconsin, "Indians not taxed." When I said that that was making citizenship to rest upon property I recollect, or I think I do, the indignant terms in which the Senator from Illinois then replied, conveying the idea that it was a demagogical argument in this body to speak of a subject like that; and yet today he says to the Senator from Wisconsin that it is not a statesmanlike proposition. He makes the same point upon the Senator from Wisconsin which he undertook to make upon me on the civil rights bill. If it is the pleasure of Congress to make the wild Indians of the desert citizens, and then if three fourths of the States agree to it. I presume we will get along the best way we can; and what shall then be the relations between these people and the United States will be for us and for our descendants to work out. They are not now citizens; they are subjects. For safety, as a matter of policy we regulate our intercourse with them to a large extent by treaties, so as that they shall assent to the regulations that govern them. That is a matter of policy, but we need not treat with an Indian. We can make him obey our laws, and being liable to such obedience he is subject to the jurisdiction of the United States. 1 did not intend to discuss this question, but I got into it by the inquiry I made of the Senator from Illinois. Mr. HOWARD. I hope, sir, that this amendment will not be adopted. I regard the language of the section as sufficiently certain and definite. If amended according to the suggestion of the honorable Senator from Wisconsin it will read as follows: All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States, and of the State wherein they reside. Suppose we adopt the amendment as suggested by the honorable Senator from Wisconsin, in what condition will it leave us as to the Indian tribes wherever they are found? According to the ideas of the honorable Senator, as I understand them, this consequence would follow: all that would remain to be done on the part of any State would be to impose a tax upon the Indians, whether in their tribal condition or otherwise, in order to make them citizens of the United States. Does the honorable Senator from Wisconsin contemplate that? Does he propose to leave this amendment in such a condition that the State of Wisconsin, which he so ably represents here, will have the right to impose taxes upon the Indian tribes within her limits, and thus make of these Indians constituting the tribes, no matter how numerous, citizens of the United States and of the State of Wisconsin? That would be the direct effect of his amendment if it should be adopted. It would, in short, be a naturalization, whenever the States saw fit to impose a tax upon the Indians, of the whole Indian race within the limits of the States. Mr. CLARK. The Senator will permit me to suggest a case. Suppose the State of Kansas, for instance, should tax her Indians for five years, they would he citizens. Mr. HOWARD. Undoubtedly. Mr. CLARK. But if she refuse to tax them for the next ten years how would they be then? Would they be citizens or not? Mr. HOWARD. I take it for granted that when a man becomes a citizen of the United States under the Constitution they cannot cease to be a citizen, except by expatriation or the commission of some crime by which his citizenship shall be forfeited. Mr. CLARK. It depends upon taxation. Mr. HOWARD. The continuance of the quality of citizenship would not. I think, depend upon the continuance of taxation. Mr. CLARK. But still he would be an "Indian not taxed." Mr. HOWARD. He has been taxed once. Mr. CLARK. The point I wish to bring the Senator to is this: would not the admission of a provision of that

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kind make a sort of shifting use of the Indians? Mr. HOWARD. It might, depending upon the construction which would happen to be given by the courts to the language of the Constitution. The great objection, therefore, to the amendment is, that it is an actual naturalization, whenever the State sees fit to enact a naturalization law in reference to the Indians in the shape of the imposition of a tax, of the whole Indian population within their limits. There is no evading this consequence, but still I cannot impute to the honorable Senator from Wisconsin a purpose like that. I think he has misapprehended the effect of the language which he suggests. I think the language as it stands is sufficiently certain and exact. It is that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." I concur entirely with the honorable Senator from Illinois, in holding that the word "jurisdiction" as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction. That question has long since been adjudicated, so far as the usage of the Government is concerned. The Government of the United States have always regarded and treated the Indian tribes within our limits as foreign Powers, so far as the treaty-making power is concerned, and so far especially as the commercial power is concerned, for in the very Constitution itself there is a provision that Congress shall have power to regulate commerce, not only with foreign nations and among the States, but also with the Indian tribes. That clause, in my judgment, presents a full and complete recognition of the national character of the Indian tribes, the same character in which they have been recognized ever since the discovery of the continent and its occupation by civilized men; the same light in which the Indians were viewed and treated by Great Britain from the earliest commencement of the settlement of the continent. They have always been regarded, even in our ante-revolutionary history, as being independent nations, with whom the other nations of the earth have held treaties, and in no case, I believe, has either the Government of Great Britain or of the United States recognized the right of an individual Indian to transfer or convey lands. Why? If he was a citizen, in other words, if he was not a subject of a foreign Power, if he did not belong to a tribe whose common law is that land as well as almost every other description of property shall be held in common among the members of the tribe, subject to a chief, why is it that the reservation has been imposed and always observed upon the act of conveyance on the part of the Indian? A passage has been read from an opinion given by Mr. Attorney General Cashing on this subject, in which, it seems to me, he takes great liberties with the Constitution in speaking of the Indian as being a subject of the United States. Certainly I do not so hold; I cannot so hold, because it has been the habit of the Government from the beginning to treat with the Indian tribes as sovereign Powers. The Indians are our wards. Such is the language of the courts. They have a national independence. They have an absolute right to the occupancy of the soil upon which they reside; and the only ground of claim which the United States has ever put forth to the proprietorship of the soil of an Indian territory is simply the right of preemption; that is, the right of the United States to be the first purchaser from the Indian tribes. We have always recognized in an Indian tribe the same sovereignty over the soil which it occupied as we recognize in a foreign nation of a power in itself over its national domains. They sell the lands to us by treaty, and they sell the lands as the sovereign Power owning, holding, and occupying the lands. But it is useless, it seems to me, Mr. President, to enlarge further upon the question of the real political power of Indians or of Indian tribes. Our legislation has always recognized them as sovereign Powers. The Indian who is still connected by his tribal relation with the government of his tribe is subject for crimes committed against the laws or usages of the tribe to the tribe itself, and not to any foreign or other tribunal. I believe that has been the uniform course of decision on that subject. The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe. Mr. FESSENDEN. Within the territory. Mr. HOWARD. Yes, sir. Why? Because the jurisdiction of the nation intervenes and ousts what would otherwise be perhaps a right of jurisdiction of the United States. But the great objection to the amendment to the amendment is that it is an unconscious attempt on the part of my friend from Wisconsin to naturalize all the Indians within the limits of the United States. I do not agree to that. I am not quite so liberal in my views. I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me and hold lands and deal in every other way that a citizen of the United States has a right to do.

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Mr. DOOLITTLE. Mr. President, the Senator from Michigan declares his purpose to be 2896 THE CONGRESSIONAL GLOBE May 30, not to include these Indians within this constitutional amendment. In purpose I agree with him. I do not intend to include them. My purpose is to exclude them; and the question between us is whether his language Includes them and mine excludes them, or whether his language excludes them and mine includes them. The Senator says, in the first place, if the words which are suggested by me, "Indians not taxed," are to govern, any State has it in its power to naturalize the Indian tribes within its limits and bring them in as citizens. Can a State tax them unless they are subject to the State? Certainly not. My friend from Michigan will not contend that an Indian can be taxed if he is not subject to the State or to the United States; and yet, if they are subject to the jurisdiction of the United States they are declared by the very language of his amendment to be citizens. Now, sir, the words which I have used are borrowed from the Constitution as it stands — the Constitution adopted by our fathers. We have lived under it for seventy years; and these words, "Indians not taxed," are the very words which were used by our fathers in forming the Constitution as descriptive of a certain class of Indians which should not be enumerated as a part of our population, as distinguished from another class which should be enumerated as a part of our population; and these are words of description used by them under which we have acted for seventy years and more. They have come to have a meaning that is understood as descriptive of a certain class of Indians that may be enumerated within our population as a part of the citizens of the United States, to constitute a part of the basis of the political power of the United States, and others not included within it are to be excluded from that basis. The courts of the United States have had occasion to speak on this subject. and from time to time they have declared that the Indians are subjects of the United States, not citizens; and that is the very word in your amendment where they are "subject to the jurisdiction" of the United States. Why, sir, what does it mean when you say that a people are subject to the jurisdiction of the United States? Subject, first, to its military power; second, subject to its political power; third, subject to its legislative power; and who doubts our legislative power over the reservations upon which these Indians are settled? Speaking upon that subject, I have to say that one of the most distinguished men who ever sat in this body, certainly that have sat in this body since I have been a member of it, the late Senator from Vermont, Judge Collatner, time and again urged upon me, as a member of the Committee on Indian Affairs, to bring forward a scheme of legislation by which we should pass laws and subject all the Indians in all the Territories of the United States to the legislation of Congress direct. The Senator from Ohio not now in his seat [Mr. Sherman] has contended for the same thing, and other members of Congress contend that the very best policy of dealing with the Indian tribes is to subject them at once to our legislative power and jurisdiction. "Subjects of the United States!" Why, sir, they are completely our subjects, completely in our power. We hold them as our wards. They are living upon our bounty. Mr. President, there is one thing that I doubt not Senators must have forgotten. In all those vast territories which we acquired from Mexico, we took the sovereignty and the jurisdiction of the soil and the country from Mexico, just as Mexico herself had held it, just as Spain had held it before the Mexican republic was established; and what was the power that was held by Spain and by Mexico over the Indian tribes? They did not recognize even the possessory title of an Indian in one foot of the jurisdiction of those territories. In reference to the Indians of California, we have never admitted that they had sufficient jurisdiction over any part of its soil to make a treaty with them, The Senate of the United States expressly refused to make treaties with the Indians of California, on the ground that they had no title and no jurisdiction whatever in the soil; they were absolutely subject to the authority of the United States, which we derived from our treaty with Mexico. The opinion of Attorney General Cushing, one of the ablest men who has ever occupied the position of Attorney General, has been read here, in which he states clearly that the Indians, though born upon our soil, owing us allegiance, are not citizens; they are our subjects; and that is the very word which is used in this amendment proposed to the Constitution of the United States, declaring that if they be "subject" to our jurisdiction, born on our soil, they are, ipso facto, citizens of the United States. Mr. President, the celebrated civil rights bill which has been passed during the present Congress, which was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward, and which without this constitutional amendment to enforce it has no validity so far as this question is concerned, uses the following language: "That all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Why should this language be criticised any more now, when it is brought forward here in this constitutional

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amendment, than when it was in the civil rights bill? Why should the language be more criticised here than it is in the second section of this constitutional amendment, where the same words are used? The second section, in apportioning representation, proposes to count the whole number of persons in each State "excluding Indians not taxed." Why not insert those words in the first section as well as in the second? Why not insert them in this constitutional amendment as well as in the civil rights bill? The civil rights bill undertook to do this same thing. It undertook to declare that "all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States." But, sir, the committee of fifteen, fearing that this declaration by Congress was without validity unless a constitutional amendment should be brought forward to enforce it, have thought proper to report this amendment. Mr. FESSENDEN. I want to say to the honorable Senator, who has a great regard for truth, that he is drawing entirely upon his imagination. There is not one word of correctness in all that he is saying, not a particle, not a scintilla, not the beginning of truth. Mr. DOOLITTLE. I take a little issue with my friend from Maine on that point as a question of fact. Mr. FESSENDEN. In the first place, this was not brought forward by the committee of fifteen at all. Mr. DOOLITTLE. This proposition was first introduced into the House by a gentleman from Ohio by the name of Bingham. Mr. FESSENDEN. I thought the Senator was speaking of this first part of the section, the amendment, not the whole. Mr. DOOLITTLE. No, sir; that is proposed by the Senator from Michigan. As I understand, a member from Ohio, Mr. Bingham, who in a very able speech in the House maintained that the civil rights bill was without any authority in the Constitution, brought forward a proposition in the House of Representatives to amend the Constitution so as to enable Congress to declare the civil rights of all persons, and that constitutional amendment, Mr. Bingham being himself one of the committee of fifteen, was referred by the House to that committee, and from the committee it has been reported. I say I have a right to infer that it was because Mr. Bingham and others of the House of Representatives and other persons upon the committee had doubts, at least, as to the constitutionality of the civil rights bill that this proposition to amend the Constitution now appears to give it validity and force. It is not an imputation upon any one. Mr. GRIMES. It is an imputation upon every member who voted for the bill, the inference being legitimate and logical that they violated their oaths and knew they did so when they voted for the civil rights bill. Mr. DOOLITTLE. The Senator goes too far. What I say is that they had doubts. Mr. FESSENDEN. I will say to the Senator one thing: whatever may have been Mr. Bingham's motives in bringing it forward, he brought it forward some time before the civil rights bill was considered at all and had it referred to the committee, and it was discussed in the committee long before the civil rights bill was passed. Then I will say to him further, that during all the discussion in the committee that I heard nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds. Mr. DOOLITTLE. I will ask the Senator from Maine this question: if Congress under the Constitution now has the power to declare that "all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States," what is the necessity of amending the Constitution at all on this subject? Mr. FESSENDEN. I do not choose that the Senator shall get off from the issue he presented. I meet him right there on the first issue. If he wants my opinion upon other questions, he can ask it afterward. I was saying that the committee of fifteen brought this proposition forward for a specific object. Mr. DOOLITTLE. I said the committee of fifteen brought it forward because they had doubts as to the constitutional power of Congress to pass the civil rights bill. Mr. FESSENDEN. Exactly; and I say, in reply, that if they had doubts, no such doubts were stated in the committee of fifteen, and the matter was not put on that ground at all. There was no question raised about the civil rights bill. Mr. DOOLITTLE. Then I put the question to the Senator: if there are no doubts, why amend the Constitution on that subject? Mr. FESSENDEN. That question the Senator may answer to suit himself. It has no reference to the civil rights bill. Mr. DOOLITTLE. That does not meet the case at all. If my friend maintains that at this moment the Constitution of the United States, without amendment gives all the power you ask, why do you put this new amendment into it on that subject?

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Mr. HOWARD. If the Senator from Wisconsin wishes an answer, I will give him one such as I am able to give. Mr. DOOLITTLE. I was asking the Senator from Maine. Mr. HOWARD. I was a member of the same committee, and the Senator's observations apply to me equally with the Senator from Maine. We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it and expose the freedmen again to the oppressions of their old masters. Mr. DOOLITTLE. The Senator has made his answer, I suppose. Mr. HOWARD. Yes, sir. Mr. DOOLITTLE. Mr. President, when the Senator undertakes to say that I have any disposition to subject the freedmen to the despotism of their old masters, he says that which there is not a particle of foundation or excuse for saying. I say to that Senator Mr. HOWARD. I beg the Senator to allow me one word. I made no personal imputation against the Senator from Wisconsin. Mr. DOOLITTLE. I desire to finish my sentence before being interrupted. 1866 THE CONGRESSIONAL GLOBE 2897 Mr. HOWARD. I will not be forced by the Senator into a false position. Mr. DOOLITTLE. I do not desire to be interrupted until I finish one sentence. I say to that Senator that so far as the rights of the freedmen are concerned, I am willing to compare my course of action in this body or elsewhere with his. I say to that Senator that I labored as hard as he has labored to secure the rights and liberties of the freedmen, to emancipate the slaves of the South, and to put an end forever not only to slavery, but to the aristocracy that was founded upon it; and I have never, by word or deed, said or done anything, as a member of this body or elsewhere, tending to build up any oppression against the freedmen, tending to destroy any of their rights. I say to that honorable Senator, and I am ready at any time to meet him in argument upon it although it is drawing me now from the question in dispute, that I myself prepared and introduced here and urged a bill whose provisions defended every right of the freedmen just as much as the bill to which we have now made reference, and I am prepared to do so and to defend their rights with the whole power of the Government. But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is, whether the language which he uses, "all persons subject to the jurisdiction of the United States," includes these Indians. I maintain that it does; and, therefore, for the purpose of relieving it from any doubt, for the purpose of excluding this class of persons, as they are, in my judgment, utterly unfit to be citizens of the United States, I have proposed this amendment, which I borrow from the Constitution as it stands, which our fathers adopted more than seventy years ago, which I find also in the civil rights bill which passed this present Congress, and which I find also in the second section of this constitutional amendment when applied to the enumeration of the inhabitants of the States. I insist that it is just, proper in every way, but reasonable, that we exclude the wild Indians from being regarded or held as citizens of the United States. Mr. WILLIAMS. I would not agree to this proposed constitutional amendment if I supposed it made Indians not taxed citizens of the United States. But I am satisfied that, giving to the amendment a fair and reasonable construction, it does not include Indians not taxed. The first and second sections of this proposed amendment are to be taken together, are to be construed together, and the meaning of the word "citizens," as employed in both sections, is to be determined from the manner in which that word is used in both of those sections. Section one provides that All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. If there be any doubt about the meaning of that paragraph, I think that doubt is entirely removed by the second section, for by the second section of this constitutional amendment Indians not taxed are not counted at all in the basis of representation. The words in the second section are as follows: Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. They are not to be regarded as persons to be counted under any circumstances. Indians not taxed are not even entitled to be counted as persons in the basis of representation under any circumstances; and then the section

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providesBut whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, &c. Now, can any reasonable man conclude that the word "citizens" there applies to Indians not taxed, or includes Indians not taxed, when they are expressly excluded from the basis of representation and cannot even be taken into the enumeration of persons upon whom representation is to be based? I think it is perfectly clear, when you put the first and second sections together, that Indians not taxed are excluded from the term "citizens" because it cannot be supposed for one moment that the term "citizens," as employed in these two sections, is intended to apply to Indians who are not even counted under any circumstances as a part of the basis of representation. I therefore think that the amendment of the Senator from Wisconsin is clearly unnecessary. I do not believe that "Indians not taxed" are included, and I understand that to be a description of Indians who maintain their tribal relations and who are not in all respects subject to the jurisdiction of the United States. In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, "subject to the jurisdiction of the United States," to mean fully and completely subject to the jurisdiction of the United States. If there was any doubt as to the meaning of those words, 1 think that doubt is entirely removed and explained by the words in the subsequent section; and believing that, in any court or by any intelligent person, these two sections would be construed not to include Indians not taxed, I do not think the amendment is necessary. Mr. SAULSBURY. I do not presume that any one will pretend to disguise the fact that the object of this first section is simply to declare that negroes shall be citizens of the United States. There can be no other object in it, I presume, than a further extension of the legislative kindness and beneficence of Congress toward that class of people. "The poor Indian, whose untutored mind, Sees God in clouds, or hears him in the wind," was not thought of. I say this not meaning it to be any reflection upon the honorable committee who reported the amendment, because for all the gentlemen composing it I have a high respect personally; but that is evidently the object. I have no doubt myself of the correctness of the position, as a question of law, taken by the honorable Senator from Wisconsin; but, sir, I feel disposed to vote against his amendment, because if these negroes are to be made citizens of the United States, I can see no reason in justice or in right why the Indians should not be made citizens. If our citizens are to be increased in this wholesale manner, I cannot turn my back upon that persecuted race, among whom are many intelligent, educated men, and embrace as fellow-citizens the negro race. I therefore, as at present advised, for the reasons I have given, shall vote against the proposition of my friend from Wisconsin, although I believe, as a matter of law, that his statements are correct. The PRESIDENT pro tempore. The question is on the amendment of the Senator from Wisconsin to the amendment proposed by the Senator from Michigan. Mr. DOOLITTLE. I ask for the yeas and nays on that question. The yeas and nays were ordered. Mr. VAN WINKLE. I desire to have the amendment to the amendment read. The Secretary read the amendment to the amendment, which was to insert after the word "thereof" in the amendment the words "excluding Indians not taxed" so that the amendment, if amended, would read: All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the State wherein they reside. The question being taken by yeas and nays, resulted — yeas 10, nays 80; as follows: YEAS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Norton, and Riddle—10. NAYS—Messrs. Anthony, Clark, Conners, Cragin, Creswell, Edmunds, Fessendon, Poster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey. Williams, and Wilson—30.

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ABSENT—Messrs. Brown, Chandler, Dixon. Lane of Indiana, Nesmith, Saulsbury, Sprague, Wright. and Yates). So the amendment to the amendment was rejected. The PRESIDENT pro tempore. The question now is on the amendment of the Senator from Michigan. The amendment was agreed to. The PRESIDENT pro tempore. The next amendment proposed by the Senator from Michigan [Mr. Howard] will be read. The Secretary read the amendment, which was in section two, line twenty-two, after the word "male," to strike out the word "citizens" and insert "inhabitants, being citizens of the United States" so as to make the section read: Sec. 2. Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age. Mr. JOHNSON. Is it supposed that that, amendment changes the section as it was before? It appears to me to be the same as it was before, because, although the word "inhabitants" is used, it is in connection with the other words that they are to be citizens of the United States. As it originally stood it read: But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens. Mr. FESSENDEN. The object is the same as in the amendment already made, to prevent a State from saying that although a person is a citizen of the United States he is not a citizen of the State. Mr. HOWARD. The object is to make section two conform to section one, to make them harmonize. Mr. JOHNSON. I am satisfied. The amendment was agreed to. Mr. SAULSBURY. Is it in order now to offer an amendment to the first section? The PRESIDENT pro tempore. There are several more amendments before the Senate, offered by the Senator from Michigan, [Mr. Howard] not yet acted upon. The next amendment offered by him will be read. The Secretary read the amendment, which was to add at the end of section two the words "in such State." The amendment was agreed to. The next amendment was to insert as section three the following: Sec. 3. That no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability. Mr. HENDRICKS. I move to amend the amendment by inserting after the word "shall" in the thirty-seventh line the words "during the term of his office." I presume I understand 2898 THE CONGRESSIONAL GLOBE May 30, the idea upon which this section rests. It is, I suppose, that men who held office, and upon assuming the office took the bath prescribed by the Constitution, became obligated by that oath to stand by the Constitution and the oath, and that going into the rebellion was not only a breach of their allegiance, but a breach of their oath. I presume that is the theory of it; and that persons who have violated the oath to support the Constitution of the United States ought not to be allowed to hold any office. If it does not rest upon that proposition,then I am not able to°see why these men should be excluded more than others who have violated their allegiance. Now, sir, what is the obligation prescribed in the sixth article of the Constitution? "The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall he hound by oath or affirmation to support this Constitution." I presume that that oath means that in the discharge of the duties of the office the party will support the

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Constitution of the United States. I have not examined any authorities upon this subject, and have seen no opinion expressed upon it, but I presume that is the meaning and force of the oath. When a Senator of the United States takes the oath to support the Constitution of the United States, it means that, as a Senator, in the discharge of his official duty, he will obey the Constitution, and in no respect violate its provisions. If a member of a State Legislature takes that oath, I presume it means that as a legislator for the State he will respect and obey the Constitution, and when his term of office has expired I suppose the oath ceases to be obligatory upon him, or, rather, that the oath has done its work. If he has obeyed the oath while he held the office, I presume his obedience to it is no longer required by virtue of the oath itself. Everybody, by virtue of his allegiance, is bound to obey the Constitution of the United States, to stand by the Union. But this oath of itself is an oath of office binding upon him as an officer, else why is it that if a Senator taking this oath, serves six years and is reelected, he is sworn again? For the simple reason that he is entering upon another terns of service, and for that term of service he must take this official oath to obey the Constitution of the United States. I presume this oath means as if it read, " Senators and Representatives and all other officers in the United States and in the States shall be bound by an oath or affirmation to support the Constitution of the United States in their offices." I know of no other purpose that there can be to require a special oath from an officer. If this be the proper construction of the oath — and I do not express an opinion upon the subject with a great deal of confidence — then the amendment which I propose to this section ought to be adopted, because after the term of service has expired in any particular office the official oath is satisfied, and the party becomes one of the mass of the community, and if he went into the rebellion he went into it violating his allegiance, like any and all other citizens who with him went into the rebellion. It is for that reason that I propose the amendment. Mr. HOWARD. I hope this amendment will not be adopted. I do not regard the constitutional oath referred to by the Senator from Indiana precisely in the same light in which he presents it. If I understand him rightly, he holds that although a person may have taken that constitutional oath, if he has not committed insurrection during the continuance of his term of office, but commits that act after the expiration of that term, the previous taking of the oath by him adds to the act no additional moral guilt. I do not concur with him in that view. It seems to me that where a person has taken a solemn oath to support the Constitution of the United States there is a fair moral implication that he cannot afterward commit an act which in its effect would destroy the Constitution of the United States without incurring the guilt of at least moral perjury. I desire to see such a comment made upon this violation of the oath of office by insurgents as will stigmatize that act for all time to come, and I think the loyal people of the United States are of the same opinion. Mr. SAULSBURY. I had supposed that the Senate would adopt this amendment without any discussion. The proposition of the Senator from Indiana, in my judgment, is so plain that I did not suppose it could have been questioned, that the oath a person takes when he enters upon the exercise of an office, or as preparatory to the discharge of the duties of an office, relates simply and solely to that office and does not extend beyond it. I never heard the interpretation of the oath of office as given by the Senator from Indiana questioned before. I shall therefore vote for his amendment. Mr. VAN WINKLE. If I understand the language and effect of this amendment, it is intended to debar those who were under that oath of office at the time they went into rebellion from hereafter holding office either under the State or national Government. I certainly concur with the Senator from Indiana, that the binding force of an official oath only continues as long as the term of the office. If it is the intention to exclude from these privileges any one who has ever held an office under the national Government or the State governments, then the language of the section is correct as it is; but if it is intended to confine it to those who were at the moment of separating themselves from the Government and going over to the rebellion under the obligation of an oath to support the Constitution, then I think the amendment offered by the Senator from Indiana should be adopted. We all admit that the obligation to support the Constitution is as binding on every citizen of the United States as an oath can make it, and that in fact oaths in most cases are of no effect. except to have a most solemn acknowledgment of the duty that the oath seems to many to impose; but it does add something to the guilt of the party that at the time he engaged in rebellion he was actually under the obligation of an oath to support the Constitution. I shall favor the amendment if the object is to exclude those who were in the actual exercise of these offices, and therefore under the binding force of their official oaths, at the moment that they embarked in the rebellion. Whatever view the majority have of it of course should govern the language employed; but understanding that the word "oath" is here introduced to designate that class of persons, I shall vote with the Senator from Indiana for his amendment. It would have been sufficient, if the other view was to prevail, to have said that no one who had ever held office under the General or State government should have these privileges, and then there would be no necessity of

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course for introducing this amendment. I hope that it will prevail, because. while it will exclude a very-threat many it will still leave some to hold office in the southern States, especially in those States where they will have very few qualified persons, and where many, we may infer, have a less degree of guilt at least than those whom this amendment will exclude. Mr. JOHNSON. I am opposed to the amendment as proposed by the committee, and shall vote, therefore, for the amendment suggested by the member from Indiana, because the former excludes too many persons from eligibility to office. All history shows, as I think, that on the conclusion of a civil war, the more mild, consistently with the safety of the country, the measures are which are adopted the better for the restoration of en-tire peace and harmony. The effect of the amendment of the committee will be to embrace nine tenths, perhaps, of the gentlemen of the South, to disfranchise them until Congress shall think proper by a majority of two thirds of each branch to remove the restriction. I have no idea that with a provision like this, the constitutional amendment will receive the sanction of any southern State, for if the suggestion of the member from Indiana is not adopted then all who have at any time held any office under the United States or who have been in any branch of the Legislature of a State, which they could not be without taking the oath required by the Constitution of the United States, are to be excluded from holding the office of Senator or Representative or that of an elector for President, or any office, civil or military, under the United States; and not satisfied with that, all who have held office under any State, military or civil, legislative or judicial, are to fall within the inhibition. Mr. FESSENDEN. Those who have been members of a State Legislature. Mr. JOHNSON. And all that have held judicial office. They are all obliged to take the oath. Mr. FESSENDEN. The Senator will observe it is following the constitutional provision. Mr. JOHNSON. I know it is. But all the members of the State Legislature, all the judicial officers of the State, are compelled to take the oath prescribed by the Constitution of the United States; and I suppose it is fair to estimate that persons will be excluded who held office twenty and thirty years ago, as well as those who held office at the time the rebellion broke out. Now, I put it to Senators to say whether they think that these southern States will, with such a restriction as that, accept this constitutional amendment. If the amendment was in separate articles, so that each article might be acted upon separately by the States, the rejection of some of the articles would not be so fatal, perhaps, as will be a rejection of the whole. Suppose the whole is rejected, and it must be if any part is, where are we? Just where we are how. Where are we now? As far as arms are concerned, peace has returned; as far as harmony is concerned, peace is apparently as far off as ever; and what is to be the effect upon the prosperity of the States which are to be kept in this condition of thralldom? Who will go as immigrants into the southern States? Who will invest their capital, who will engage in the cultivation of cotton and of rice and of sugar? And just in proportion as these products are lessened, just so in proportion is the prosperity of the whole country delayed. I have had occasion to say more than once, and the idea is so fully impressed upon my mind that I hope the Senate will excuse me for reiterating it, that we ought to consider, it is due to justice to consider, it is due to generosity and magnanimity to consider, that many of the men who will be excluded by this constitutional amendment from sharing in the honors of the country believed that the Constitution as it stood gave them the right to secede. Illegal as the notion was in my judgment, yet some of the brightest intellects in the country, North as well as South, maintained the same doctrine; and the war, therefore, in which we have been engaged was not a war like the civil wars which have existed in other countries. It was a war growing out of a difference of constitutional opinion, to say nothing of anything else. The opinion entertained by the South was as honest as was the opinion entertained by the North — wrong, dangerous, unconstitutional, inconsistent as I think it is with the continuance of any Union to be formed out of the States of the United States, but still honestly entertained. Now they have become satisfied by the result of the conflict that their doctrine was one which could not be maintained and never will be suffered to exist as long as the people of the United States are true to the interest and the prosperity and renown of the country. Why, then, should we exclude the numerous class that will be excluded by this provision? Do you not want to act upon the public opinion of the masses of the South? Do you not want to win them back to loyalty? And if you do, 1866 THE CONGRESSIONAL GLOBE 2899 why strike at the men who, of all others, are most influential and can bring about the end which we all have at heart? That my friend from Indiana properly construes the obligation of that oath I have no doubt. I think every

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lawyer in the Senate would say, every statesman within the sound of my voice would say, that for no act done after the termination of the official term of the officer, inconsistent with the Constitution of the United States, by him who had been the incumbent of the office, could he be indicted for perjury; and if he could not be indicted for perjury, it could only be because the legal obligation of the oath — I am not speaking now of the moral obligation — expired at the termination of the term of office to which the party had been elected or appointed. Then as to the moral obligation, what does it add to the force of that moral obligation which allegiance as between the Government and the party owing the allegiance creates? Treason has been committed against the United States, according to the letter of the law and according to our understanding of the law; but it is neither more nor less treason, it is not a milder or more aggravated type of treason, because the parties who may have committed it may at some time or other have taken an oath to support the Constitution of the United States. If any man was indicted who had not taken that oath, he could not be permitted to urge in his defense or in extenuation of his crime that he had never taken an oath to support the Constitution. But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President Mr. MORRILL. Let me call the Senator's attention to the words "or hold any office, civil or military, under the United States." Mr. JOHNSON. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives. But I submit to the Senate whether it is advisable, whether it is politic, looking to the end which we all seek to accomplish, the true restoration of the Union, a union of hearts as well as a union of hands, that you should exclude the large mass of people from participating in the honors of the Government who will be excluded by this provision. Mr. GUTHRIE. I am inclined to vote for this amendment without going into a criticism upon the legal effect of the oath. I am against the section altogether on account of its proscriptive nature. I will vote for the amendment, because if it be adopted it will reduce the number to whom the section will apply. I should be glad if now, after having been so many months in session, we had agreed among ourselves as to the conciliation of the South, because conciliation at last is our only true policy; for unless we come to agree with each other; unless we are able again to meet and unite in these Halls as citizens and representatives of a common country, to shape the destinies of that country in Congress, to direct it against embattled nations, if it shall become necessary, we are not a united people. This third section is not an act of conciliation, it is an act of proscription. It is true it is not as extensive as the third section sent to us from the other House was. I think we have gained an advantage in that respect. That measure was intended to proscribe all the active population of the rebel States, because they all stood by the southern movement. This section as it now stands certainly proscribes the representative men of the South, the men who had influence, and who still have influence in their localities, and who can do more in the work of conciliation here and elsewhere than all the men that you leave out of it. They are the representative men of the South, they have the confidence of the people of that section of the country. I think they have given abundant evidence that they are satisfied that they have tried the game of secession and given it up honestly and entirely, and are willing to come back to join in the Government heart and hand, and carry forward its flag, looking to the bright destiny of this nation in the future. The amendment will make the section less proscriptive, diminish the number which fall victims under its rule, and for that reason I shall vote for it. Now is the hour for conciliation, now is the time to trust in the South. Mr. HENDRICKS. It is proper, perhaps, I should say that I do not expect to vote for the third section whether the amendment which I propose be adopted or not; but I suppose that I understood the purpose of the caucus, from which this amendment came, to be to exclude the men who violated their oath of office when they went into the rebellion, who added moral perjury to the crime of violating their allegiance. I thought the language went further than the caucus intended, and therefore I moved this amendment with a view of confining the section to the very case which I had a right to presume was intended to be met. If my amendment be adopted, it will leave the section to exclude all persons who at the time they went into the rebellion were under the obligation of an official oath to support the Constitution of the United States. Mr. SHERMAN. I would ask my friend, the Senator from Indiana, whether it excludes those who resigned an office in the United States Army, for instance, for the purpose of going into the rebellion. Does not his

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amendment exclude from the operation of the section those who held office under the United States, resigned it, and then went into the insurrection, as in the case of General Lee? Mr. HENDRICKS. I think not. If the Senator will observe the language he will see that it has not the effect which he fears. I use the words "during the term of his office." A man's term does not expire because he resigns his office. If a man holds an office the term of which the law fixes at four years, the term is four years. If he holds an office during good behavior, the term is thus fixed; the resignation of an officer does not put an cud to the term ; that is judicially settled. In some of the States, for political purposes, it is provided in the constitution that a man elected to a judicial office shall not, during the term of the office for which he was elected, be eligible to any other office. Judicial officers holding office under a constitution like that have resigned during the term and been elected to other offices, executive, perhaps, in their character, and the courts have always hold that they could not take the office to which they were elected when the term of the previous office was fixed by law. That is clear law, I presume, so that I think the word "term" excludes all men who, at the time they went into the rebellion, were under the obligation of an official oath to support the United States Constitution. Mr. VAN WINKLE. I hope the Senator will make that point clear. Mr. HENDRICKS. If these words will make it any more conclusive, I am willing to say, "during the term of office for which he was elected or appointed;" but I think the expression "during the term of the office" is equally comprehensive. Mr. SHERMAN. I do not know that it is worth while to discuss the precise effect of the amendment, because I think the Senator from Indiana is satisfied that his amendment will not prevail; but the objection which occurred to me the moment it was offered was, that it would relieve from the operation of the third section the very men who ought to be excluded from ever hereafter holding office under the United States. Take the case of Senators holding seats as members of this body who resigned their seats here and went directly to the South and took rip arms. The term of their office in some cases expired by limitation on the 4th of March after they retired from here, and before they actually took up arms; and yet. on leaving this Senate Chamber, they proceeded to the South and organized rebellion, and they would be relieved from the operation of this section by the amendment of the Senator from Indiana. So in the case of officers of the Army and Navy, all of whom had sufficient respect for the oath which they had taken to resign their offices and to see carefully that their resignations were accepted, so that the termination of their office was authenticated in the records of the War Department and the Navy Department. Then, having put an end to their offices under the United States, they proceeded to the South and organized rebellion against the Government of the United States. They would, in my judgment, be relieved from the operation of the third section. But I take it all of us understand the meaning of the third section. It is that, for a time at Least, all who have violated not only the letter but the spirit of the oath of office they took when they became officers of the United States, and took the oath to support the Constitution of the United States, shall not, hold office until a state of affairs shall come when two thirds of both Houses may, by a general amnesty, wipe out all these disabilities; and it seems to me that this is a reasonable stipulation, one that the United States may,exact. After the attempted revolution in England in 1745, the English Government was considered extremely liberal when, two years after the Pretender had been overthrown by force of arms, all the pains and penalties imposed by Great Britain on his adherents were removed, except the power to hold office; and I believe all who took part in that rebellion were forever disfranchised from holding an office of honor, trust, or profit in the kingdom of Great Britain. It was considered extremely liberal that all the other penalties of treason were removed. The effect of this section is simply to remove all the penalties that rest on these men for treason except the power to hold office; and if a new generation of men should hold all the offices in the southern States; if the young men who are now growing up should hold all the offices of honor, trust, and profit there, I think no harm would result. If those men who have once taken an oath of office to support the Constitution of the United States and have violated that oath in spirit by taking up arms against the Government of the United States are to be deprived for a time at least of holding office, it is not a very severe stipulation. Mr. HENDRICKS. I ask for the yeas and nays on my amendment. The yeas and nays were ordered; and being taken, resulted—yeas 8, nays 34; as follows: YEAS—Messrs. Buekalew, Davis, Guthrie, Hendreks, Johnson, Riddle, Saulsbury, and Van Winkle—6. NAYS—Messrs. Anthony, Chandler, Clark, Cowan, Conness, Cragin, Creswell, Doolittle, Edmunds, Pessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Norton, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull,

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Wade, Willey, Williams, and Wilson—34. ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sprague, Wright, and Yates―7. So the amendment to the amendment was rejected. Mr. JOHNSON. I move now to amend the amendment by striking oat all after "States" in line thirty-five down to the word "State" in line thirty-six. The words which I propose to strike out are "or as a member of any State Legislature, or as an executive or judicial officer of any State. I ask for the yeas and nays on this. The yeas and nays were ordered. Mr. COWAN. I am opposed to this section in tote. I am opposed to the infliction of punishment of any kind upon anybody unless by fair trial where the party himself is summoned and hoard in due course of law. I am 2900 THE CONGRESSIONAL GLOBE May 30, as much opposed to a bill of pains and penalties, or to the exercise of judicial power by Congress through the medium of an amendment to the Constitution, as I am opposed to it in an act of Congress where it is expressly forbidden, and in any vote which I give upon propositions to modify this section I do not wish to be understood as being willing to vote for that principle in any event. The question being taken by yeas and nays, resulted-yeas 10, nays 32; as follows: YEAS—Messrs. Buckalew, Cowan. Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury—10. NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirk-wood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—32. ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sprague, Wright, and Yates—7. So the amendment to the amendment was rejected. Mr. JOHNSON. I now move to amend the amendment by striking out in line thirty-three the words "having previously taken" and inserting "at any time within ten years preceding the 1st of January, 1861, had taken;" so as to make it read: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who at any time within ten years preceding the 1st of January, 1861, had taken an oath as a member of Congress, &c. I ask for the yeas and nays on this proposition. The yeas and nays were ordered; and being taken, resulted—yeas 10, nays 32; as follows: YEAS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury—10. NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Easter, Grimes, Harris, Henderson, Howard, Howe, Kirkwood. Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey. Williams, and Wilson—32. ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sprague, Wright, and Yates—7. So the amendment to the amendment was rejected. The PRESIDENT pro tempore. The question recurs on the amendment of the Senator from Michigan, [Mr. HOWARD,] to insert the words which have been read as the third section of the proposed article of amendment to the Constitution. Mr. VAN WINKLE. I am induced, by a remark made by the Senator from Ohio, to make an inquiry. I understood him to say that the meaning of the last clause of this section, which clause tends to reconcile me to the whole section, is that there can only be a general removal of the disability by a general amnesty; and although he did not say distinctly that there could not be a removal of the disability in an individual case, I should like to know what is the understanding, at least of the mover of this proposition, in reference to that point. This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood. I would suggest, although I do not make the motion, that instead of "two thirds of each House" we should insert "a majority of all the members elected to each House." It strikes me that it is very difficult to get a two-thirds majority unless under very peculiar circumstances on anything, and that a majority of all the members elected to each House, which is being substituted for the two-thirds vote in many of our State

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Legislatures, would be sufficient in the present case. Mr. HOWARD. If I understood the inquiry put by the honorable Senator from West Virginia, it was whether the latter clause in section three would not require a general act to be passed by Congress removing the disabilities in all cases. I do not so understand the clause. I understand that the clause gives to Congress full discretionary power to grant an amnesty in an individual case, when applied for, or a part of the whole. Any portion of persons here proscribed may be pardoned, or rather this disability may be removed as to any portion of them in detail or in gross. In short, I regard it as a discretionary authority given to Congress, to be exercised by Congress in individual instances, or in any other form that Congress may see fit to exercise the power. I entertain no doubt whatever that such will be the construction that will be put upon it. Mr. VAN WINKLE. I am entirely satisfied with the explanation; but I was induced to make the inquiry by a remark of the Senator from Ohio, who, I supposed, spoke with knowledge, that it only applied to a general amnesty. The language certainly would cover the removal of the disability in individual cases. Mr. SHERMAN. I did not hear the Senator from West Virginia, and I beg him to repeat his statement. Mr. VAN WINKLE. I say I am satisfied with the explanation made by the Senator from Michigan; but I had understood the Senator from Ohio while up a few moments ago to give the last clause of this amendment the interpretation that it would not be in the power of Congress to remove the disability in individual cases. I understood the Senator from Ohio to say that Congress would have the power by a general amnesty to remove this disability. The Senator spoke generally. He may not have intended to contradict the other power; and I made the inquiry to he certain on that point. Mr. SHERMAN. I have no doubt that the larger power includes the other, The power to make a general amnesty would include the power to make an amnesty as to classes or particular individuals. I do not think there is any doubt about that. Mr. SAULSBURY. I move to amend the amendment by inserting after the word "House" in the fortieth line, the words "and the President may by the exercising of the pardoning power;" so as to make the clause read: Congress may by a vote of two thirds of each House, and the President may by the exercise of the pardoning power, remove such disability. Mr. HOWARD. I hope that amendment will not be adopted. Mr. SAULSBURY. I call for the yeas and nays upon it. The yeas and nays were ordered; and being taken, resulted—yeas 10, nays 32; as follows: YEAS—Messrs. Buckalew, Cowan, Davis, Doolittie, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury—10. NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirk-wood, Lane of Indiana. Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—32. ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sprague, Wright, and Yates—7. So the amendment to the amendment was rejected. The PRESIDENT pro tempore. The question recurs on the amendment offered by the Senator from Michigan to insert certain words as the third section. Mr. HOWARD. I ask for the yeas and nays. The yeas and nays were ordered. Mr. DOOLITTLE. I will state briefly why I cannot vote for this amendment as a substitute for the third section of the resolution which has been stricken out. My first reason is that by a law of Congress now all persons mentioned in this section are excluded from holding any of these offices. The oath that is required by a law of Congress to be taken by every person holding an office under the United States Mr. TRUMBULL. Does that prevent their holding a State office? Mr. DOOLITTLE. No; it does not prevent the holding of a State office, but it prevents them from holding any office under the Government of the United States, and that is as far as I think we ought to go. No person can be a Senator or Representative in Congress, or an elector of President and Vice President,or hold any office, civil or military, under the United States, under the law as it now stands, who does not take an oath that he has not participated in the rebellion. The oath which we require at their hands prevents any such persons from holding any such offices. That law is upon our statute-book. That law will remain upon the statute-book just as long as Congress in its judgment shall think best to retain it. And, sir, there is, in my judgment, no danger whatever, no apprehension, that that law will be taken from our statute-book so long as the public interests rewire that it should

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there remain. Therefore, in my judgment, it is not necessary to adopt any such constitutional amendment, because this amendment contains a clause putting it in the power of Congress to put an end to the effect of this provision. It is true that it requires two thirds of Congress in order to do it, whereas under the law as it now stands a majority of Congress could change the existing law on that subject. What I maintain is this: Congress is the representative of the American people; Congress speaks the will of the American people, and I do not think that it is in accordance with our system of government, which presumes that Congress speaks for the people, to suppose that a majority of Congress will repeal this oath until a majority of the people of the United States are in favor of doing so; and when a majority of the people are in favor of universal amnesty they have a right to express that opinion and to have universal amnesty. I undertake to say that upon no principle of statesmanship or Christianity, whether you derive your conclusions from the experience of history, the teachings of Christianity, or the teachings of a wise statesmanship, can you desire to retain in this country any consider-able portion of its people who shall be under the ban of eternal proscription. What, Mr. President, is the duty of the Government, having suppressed the rebellion? It is to punish the guilty leaders under the law of the land; it is to bring them to punishment; and the duty of Congress is, if there is anything which stands in the way and which Congress can remove, to pass such laws as may expedite the trials of the great offenders. The great offenders should be tried and punished. and those that you do not try and do not punish should not be held under proscription, the unrelenting, eternal enemies of the Republic. Again, Mr. President, this provision, if it passes, will have the effect of putting a new punishment, not prescribed by the laws, upon all those persons who are embraced within its provisions. Nobody can doubt that. It is in the nature of a bill of pains and penalties, imposed by constitutional enactment it is true, but it is a punishment different from the punishment now prescribed by law. What is the effect of adopting it? What is the legal effect of adopting a new punishment for an offense which has already been committed? It repeals the old punishment, and that cannot be inflicted. If today the punishment for the crime of murder is death, and tomorrow you change your punishment to imprisonment for life, the old penalty is repealed; it cannot be inflicted upon a culprit who has been guilty previous to the passage of the law. Such has been decided by the courts many times to be the law; and if by a constitutional amendment you impose a new punishment upon a class of offenders who are guilty of crime already, you wipe out the old punishment as to them, not as to those who are not embraced within this. This only embraces a particular class of individuals who have taken an oath to support the Constitution of the United States. Now, I do not propose to wipe out the penalties that these men have incurred by their treason against the Government; but I would punish a sufficient number of them to make treason odious. I would punish the leaders, those who were instrumental in bringing on this rebellion; but to the masses I would give amnesty. Mr. NYE. How many would you like to hang? 1866 THE CONGRESSIONAL GLOBE 2901 Mr. DOOLITTLE. The Senator himself stated the other day that five or six would be enough to hang. Mr. NYE. Do you acquiesce in that? Mr. DOOLITTLE. I think I ought to be satisfied if the Senator from Nevada is satisfied with five or six, But, Mr. President, I have another objection which weighs, perhaps, still more upon my mind than those I have stated. The insertion of this section into this constitutional amendment, if these provisions are not to be submitted separately, tends to prevent the adoption of the amendment by a sufficient number of States to ratify it. You say every day that you cannot get a jury under the laws of several of the States, Virginia and others; that today the state of public opinion is such that you cannot get a jury who would convict a person of crime, and yet you propose to submit this constitutional amendment to be passed upon by the people of those States to determine the question whether they will adopt a constitutional amendment upon a popular vote, which constitutional amendment on its face declares that all of those men who have ever taken an oath to support the Constitution of the United States are forever to be excluded from holding office under the United States or within the State unless two thirds of Congress will con-sent to give them the privilege. Sir, what States will adopt it? It is possible that some one, two, perhaps three, of those States to be affected by this amendment may adopt it. Mr. LANE; of Kansas. Four will accept that part of it. Mr. DOOLITTLE. What four? Mr. LANE, of Kansas. Virginia, Tennessee, Arkansas, and Louisiana. I saw some gentlemen on Monday from Tennessee, and talked with them about this particular clause, and they told me it would be the most popular thing that could he tendered. And the very men that you want to hang ought to accept it joyfully in lieu of their hanging.

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[Laughter.] Mr. DOOLITTLE. The Senator from Kansas, perhaps, has information on this subject that other Senators do not possess. Mr. LANE, of Kansas. I saw those gentlemen on Monday. Mr. DOOLITTLE. I do not know who those particular gentlemen were. Were they the gentlemen that deserved hanging or not? [Laughter.] Mr. LANE, of Kansas. They were conservatives from Tennessee. Mr. DOOLITTLE. Mr. President Mr. SHERMAN. If it will not interrupt my friend from Wisconsin I should like to ask him a question, whether there is in history an example of an insurrection of the most ordinary character terminating with no punishment to any man, no deprivation of property, no deprivation of franchise, no deprivation of any right whatever except the right to hold office; whether ever more generous terms were held out to persons who had been engaged in insurrection than are here proposed? Mr. DOOLITTLE. I understand, then, my friend, the Senator from Ohio, to admit that adopting this section does away with all further punishment. Mr. SHERMAN. No; I do not think this will prevent your hanging four or five. Mr. DOOLITTLE. I understood the Senator by his question to admit that adopting this repeals all other penalties as against the men included within the section. Mr. SHERMAN. Not at all. If the Senator wants to take the blood of four or five I am perfectly willing. Mr. DOOLITTLE. Mr. President, I deem this entirely unnecessary, as I stated at the beginning. I deem it as the adoption of a new punishment as to the persons who are embraced within its provisions, and therefore the abolition of the existing punishment; and I deem it as tending to prevent the adoption of the amendment by a sufficient number of States to secure the ratification of the other part of the constitutional amendment. If this is to be inserted as a part of the amendment, to be submitted as a part and parcel of the whole, so that the whole must be taken together and the different sections shall not be acted upon separately, it will tend to prevent its adoption, and preventing its adoption has no other tendency or effect than to keep open this difficulty for years to come. Mr. TRUMBULL. I do not suppose we shall get any vote on this matter to-night. If I thought so I should not take up any time; but I can hardly forbear saying a word or two in reply to the Senator from Wisconsin, [Mr. DOOLITTLE.] They seem to have peculiar notions in Wisconsin in regard to offices, and the Senator who has just taken his seat regards it as a punishment that a man cannot hold an office. Why, sir, how many suffering people there must be in this land! He says this is a bill of pains and penalties because certain persons cannot hold office; and he even seems to think it would be preferable in some instances to be hanged. He wants to know of the Senator from Ohio if such persons are to be excepted. This clause, I suppose, will not embrace those who are to he hanged. When hung they will cease to suffer the pains and penalties of being kept out of cinch. I recollect having seen in the newspapers — I do not know whether it is true or not; I very seldom allude to newspaper articles — but I saw in some of the newspapers that an officer of this Government, who was supposed to control some patronage in the minor offices of the country, spoke of the officers as "eating the bread and butter of the Presidents" I recollect the Senator from Wisconsin himself in a speech some days ago, spoke of the President's officers. The President has got no officers. Mr. DOOLITTLE. I never stated that. Mr. TRUMBULL. The Senator spoke of their being responsible to the President. Mr. DOOLITTLE. So I did, and that is a fact. Mr. TRUMBULL. How so? Mr. DOOLITTLE. They are responsible to the President. Mr. TRUMBULL. They are responsible to the law of the land and not to the President. Mr. DOOLITTLE rose. Mr. TRUMBULL. Let the Senator keep cool. I undertake to say that a person holding office, who does not acknowledge his responsibility to the law and his oath of office, but to a President, is not fit to be an officer. No officer is responsible to the President, but his responsibility is to the law under which he acts. The President is not omnipotent in this country. He does not create offices; he cannot appoint an individual to the humblest office in the land except in pursuance of the Constitution and the law. He himself is responsible to the Constitution and the law, and so is the most inferior postmaster in the land. This idea that the offices of this country belong to the President, that men eat his bread and butter, is very erroneous. Why, sir, the President feeds nobody. It is derogatory to the position of any man who holds an office to talk of his eating the bread and butter of the

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President and being responsible to the President and not to his oath of office, to the law and the Constitution. Why, sir, who ever heard of such a proposition as that laid down by the Senator from Wisconsin, that a bill excluding men from office is a bill of pains and penalties and punishment? The Constitution of the United States declares that no one but a native-born citizen of the United States shall be President of the United States. Does, then, every person tiring in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life, because by the Constitution he is ineligible to the Presidency? This is the Senator's position. But he tells us that there is no necessity for this clause; and why? Oh, we have a law that excludes from office every one of these individuals. Have we? How long is it since the Senator from Wisconsin stood up in this body and with loud voice proclaimed to the Senate and the nation that each House should judge for itself whether members should be admitted into the body, and that Congress had no right to decide upon it? Now he tells us that we have a law which excludes all these persons from office, and he does not want it in the Constitution. How long is it since he argued and urged here that the Senate should decide for itself whether the rebellious States were fit to be represented or not? Today he tells us we have a law which prevents each House from admitting disloyal persons. I am glad the Senator is disposed to obey the law; and I trust we shall hear no more of his saying that it is for the Senate exclusively to decide, irrespective of law, whether persons are to be admitted to seats. I know that each House is the judge of the elections, the qualifications, and the returns of its own members under the Constitution; but each House is not made the judge of whether there is a constituency authorized to representation or not. That is a question proper to be decided by the joint action of both Houses. Each House may have the physical power to decide it, but Senators have no fight to vote that the representatives of Maximilian in Mexico, of Napoleon in France, or of the people of Canada, shall be admitted to seats here; and they have just as little right to admit the representatives of any other people not recognized by law as entitled to representation, as they have to admit representatives from Mexico, or France, or Canada. But the Senator says that this provision excluding leading rebels from office will not be accepted in the South. Sir, has it come to this, that the leaders of the infamous rebellion who undertook to overthrow the Government, who marshaled armies and maintained a war against it for four or five years, when put down by force of arms cannot be deprived of the privilege of holding offices? The Senator says the South will not accept it; but, sir, they have gone further than this in Maryland, in Tennessee, in West Virginia, in Missouri. Everywhere in the South where loyal men have the control they not only exclude the leading traitors from office, but also from the right of suffrage. Mr. LANE, of Kansas. And so in Arkansas. Mr. TRUMBULL. In Arkansas also, I am reminded by the Senator from Kansas. Sir, the object of this provision is to place these rebellious States in the hands of loyal men. Is the Senator from Wisconsin opposed to it? Does he want to put the control of these States in the hands of disloyal men? If he does not, then vote for this provision. That is all there is to it, and if the time ever comes, as I trust it will, when these leaders shall be cured of their malignity toward the Union, when they shall be willing to treat loyal men and Union men fairly and justly, it will be in the power of Congress to remove the disability; and if the people of these localities are then willing to trust the repentant rebels they can elect them to office. So, it is intended to put some sort of stigma, some sort of odium upon the leaders of this rebellion, and no other way is left to do it but by some provision of this kind. The Senator wants it in a law. Sir, what would it be good for in a law? So far as the members of this body and of the other House are concerned, the Constitution of the United States has provided the qualifications for a Senator and for a Representative, and it has been held more than once that it is incompetent to add to those qualifications by law. You may do it by a change of the Constitution, and hence the propriety of putting it here. The test oath is a different thing. The oath does not go to the qualification, but to the discharge of the duties subsequently, and the requirement of the oath may be constitutional when a direct disqualification imposed by law would not be constitutional. That is a proposition, however, which I do not propose to argue at this time. I rose merely to repel the idea that it was imposing 2902 THE CONGRESSIONAL GLOBE May 30, pains and penalties to deprive a man from-holding office. I rose to repel the idea that the offices of this country belonged to the President, and that men who held them were living upon his bounty; to show that the oath was not a sufficient protection; and that to have the proper protection against leading rebels being elevated to office, not by Union men but by the rebels, it was necessary to insert a clause of this kind. We find that every southern State which is in the hands of loyal men, although it may have been formerly engaged in this rebellion, has not only

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excluded from office, but from the right of suffrage also, all the leading traitors ; and, sir, I apprehend that this proposition will be a popular provision with loyal men, and how the disloyal regard it is not a matter of so much consequence. Mr. DOOLITTLE. Mr. President — Mr. HENDRICKS. If the Senator will yield I will move an adjournment. Mr. GRIMES. Let us go into executive session. Several SENATORS. It is too late. Mr. HENDRICKS. If there is any business in executive session desirable to be. done, I will give way. Mr. GRIMES. I move that the Senate proceed to the consideration of executive business. ["No, no; it is too late.") The PRESIDING OFFICE R, (Mr. POMEROY in the chair.) The Senator from Iowa moves that the Senate proceed to the consideration of executive business. Several SENATORS. Let us adjourn. The question being put on Mr. GRIMES'S motion, a division was called for. Mr. SHERMAN. If there is any controversy about it, I move that the Senate adjourn. The motion was agreed to; and the Senate adjourned.

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2914 THE CONGRESSIONAL GLOBE May 31, RECONSTRUCTION. The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment of Mr. HOWARD to insert as section three of the proposed article of constitutional amendment the following: That no person shall be a Senator or Representative in Congress. or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability. Mr. DOOLITTLE. Mr. President, I thank the Senate for its kindness in postponing the consideration of this resolution last evening until the present moment. The hour was late and I was somewhat weary; and more, at the moment, from the manner and tone of my friend from Illinois, perhaps, than anything else, I confess that I felt some little degree of resentment, but that has passed. I know my friend from Illinois so well, and have known him so long, that it is but just to him and myself to say that I know very well that under that tone which he sometimes assumes in debate, apparently of anger, so provoking to a stranger, nothing of the kind is, in fact, intended. Sir, the moment has passed, and with it all feeling of resentment. I shall address myself to the ideas to which he gave utterance in reply to some points which I had briefly stated in objection to this amendment. He began by saying that there were some peculiar ideas in Wisconsin, he thought. Now, I assure my friend that no ideas are prevalent there, that I am aware of, which do not prevail also in Illinois and the adjoining States. Among others, he referred to what has been referred to before, a certain statement alleged to have been made by the First Assistant Postmaster General, formerly Governor of the State of Wisconsin. It so happens that since last evening's discussion I met Governor Randall, and he authorized me to say to my friend from Wisconsin [Illinois] that the remark to which he refers is not correct, that the statement is false, and therefore those who repeat it are giving currency to a falsehood unjust to him. Mr. HOWE. Was that remark addressed to me — your "friend from Wisconsin?" Mr. DOOLITTLE. I meant to say "my friend from Illinois." It was my friend from Illinois who made the remark yesterday. Mr. TRUMBULL. I believe I stated that I had seen some statement in the papers in regard to it, and I think I said I did not know whether it was true or not. Mr. DOOLITTLE. I did not understand the Senator from Illinois to vouch for the truth of it. What I state is, that the First Assistant Postmaster General authorizes me to say that the statement to which the Senator referred as circulating is false. Mr. TRUMBULL. I know nothing about the statement, any further than that I saw it in the papers. Mr. DOOLITTLE. Of course I do not intend to say that what the Senator stated, that he saw it in a newspaper, is false — not at all, but that the statement circulating in reference to Governor Randall was a false statement. My friend from Illinois also made a remark in relation to what I said on a former occasion which I think was not warranted by what I said. I stated that executive officers were responsible to the President as the chief executive officer of the Government. My friend from Illinois seems to think that because I made this statement that they are responsible to the President, because he under the Constitution has placed upon him the responsibility of seeing that the laws are faithfully executed, I intended to say that these men were subject merely to the will of the Executive and not to the laws of the land. Not at all, sir. The responsibility of the Executive is to see that those men who are exercising executive functions under him faithfully execute the laws of the land. And, sir, is that an idea peculiar to Wisconsin? I think that is a fundamental idea well understood, and has been from the beginning of the Government, that the President being the chief Executive and sworn under the Constitution to see that the laws are faithfully executed, executive officers who are under him are responsible to him in that sense that he must see that they faithfully discharge their duties. Now, Mr. President, enough on this question which has no bearing whatever on the subject before the Senate. Mr. HOWE. My colleague will indulge me— Mr. DOOLITTLE. If my colleague will allow me to conclude, I desire to leave all these personal matters and go on simply with the consideration of the question before the Senate. Mr. HOWE. I simply want to know precisely what the contradiction is which is made here in behalf of the

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First Assistant Postmaster General. I understand him to deny the truth of a statement made yesterday by the Senator from Illinois. The statement made by the Senator from Illinois, I think, has some reference to a declaration of mine made here some time previous. I should like to know what the precise issue is. Here is one remark made by the Senator from Illinois yesterday, as printed in the Globe: "I recollect having seen in the newspapers — I do not know whether it is true or not; I very seldom allude to newspaper articles — but I saw in some of the newspapers that an officer of this Government, who was supposed to control some patronage in the minor offices of the country, spoke of the officers as 'eating the bread and butter of the President.' I recollect the Senator from Wisconsin himself, in a speech some days ago, spoke of the 'President's officers.'" Is it denied by the First Assistant Postmaster General that he has spoken of officers as " eating the bread and butter of the President?" Is that the statement which is denied? 1866 THE CONGRESSIONAL GLOBE 2915 Mr. DOOLITTLE. The statement that I made was that I had seen the First Assistant Postmaster General, and that in conversation, alluding to that subject, he had authorized me to state that that rumor or statement which was circulating in the newspapers is not true, that it is false. Mr. HOWE. The language substantially as used by the Senator from Illinois yesterday, I believe, was first introduced here by myself. I stated here that I had been told that the First Assistant Postmaster General had declared that no man should eat the bread and butter of the President unless he sustained his policy. That is as near as I remember the language. I made that statement upon the authority of a member of the House of Representatives. I met the First Assistant Postmaster General in the evening after I had made that remark. He did not call its correctness in question; but when I returned to my boarding-house, I found a note from him asking me upon what authority I made that statement. I replied to him, saying I made it upon the authority of the Representative of the fifth district of the State of Wisconsin, since which I have heard nothing from him or any one else questioning the accuracy of that statement until this remark was made here by my colleague. Mr. DOOLITTLE. I have stated what he authorized me to state on that subject. Of course I personally do not undertake to state the fact one way or another. But enough, sir, on that subject of personalities. I wish to call the attention of the Senate to the question involved in the amendment. I stated in the course of my remarks yesterday that the oath which Congress required all officers under the Government of the United States to take, so long as that oath remained unrepealed by law, effected all that is effected by this amendment. It excludes those who cannot take it from entering upon any office under the Government of the United States. Of course the oath does not refer to State officers. As to State officers, this proposed amendment goes further than that oath; but as to all Federal officers, the oath required to be taken by them, that they have not engaged in this rebellion against the Government of the United States, is as effectual, so long as that law stands unrepealed, as this amendment would be. The Senator from Illinois, in reply to this, says that it is a new doctrine in me to maintain that members of Congress should obey the laws of the land and take the oaths which are prescribed by law before they are entitled to admission; that I have contended that each House was to judge for itself of the qualifications, elections, and returns of its members; and that in that judgment each House was independent of the other. Mr. President, I have contended that each House is the judge, and the sole judge, the judge without appeal, the judge over whom neither the President nor the Supreme Court nor the other House has any rightful control whatever. But does the Senator from Illinois suppose that I ever maintained that the House of Representatives or the Senate, in making up its judgment, should violate the laws of the land? Such an idea never entered into my brain, I can assure the Senator from Illinois. I supposed that the Senate of the United States would judge according to law. Has it come to this, that because I insist that the Senate of the United States shall judge upon the elections, qualifications, and returns of its members, I have any idea that the Senate will undertake to violate the laws of the land or repeal the laws of the land? I never heard such an idea suggested by any human being. I never thought that it could enter into the mind of any human being. I have confidence in the judgment of the Senate, that the Senate will judge right, that the Senate will judge as a tribunal authorized by the Constitution to judge, and to which is given the sole judgment on that question. I think, therefore, that the remark of the Senator from Illinois, that he was glad that I was now disposed to obey the laws, was a remark which was not called for by anything I have ever uttered on this floor or elsewhere. I am just as much in favor of maintaining the laws and the Constitution as the Senator from Illinois possibly can be, and I have always maintained the validity of this oath, under the Constitution, which was required. As to the President of the United States, his oath is specified in the Constitution; and as the Vice

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President, in the event of the resignation or death of the President, is to exercise the same office, the only doubt I have ever had was whether the Vice President ought not to take the same oath as the President; whether we can prescribe to the Vice President a different oath from what the Constitution requires us to prescribe to the President. That is the only doubt I have ever had, and that is a question upon which I have doubts, for the reason I have stated, because the Vice President, in a certain contingency, is to take the place of the President, and to act in his stead. But, sir, that is not a question arising here. I maintained, further, that this proposed amendment prescribes a new punishment for an offense which has already been committed. My honorable friend says that this is not punishment; that that idea must be peculiar to Wisconsin; that to pass a law or the sentence of a court or the decree of any tribunal which shall deprive a person of an office, or which shall disqualify him forever to hold an office is not a punishment. Sir, this idea is by no means peculiar to Wisconsin. There is not a State in this Union where, in some of the criminal statutes, is not to be found, as a part of the penalty attached to the crime which has been committed, a disqualification in certain cases to hold an office; and in cases of impeachment before this body, the highest tribunal known to the laws of the land, when the judgment of this body is pronounced, it is confined by the Constitution to that very thing, removal from office and disqualification from ever holding office, after the judgment of the Senate sitting as a court of impeachment. The Constitution says: "Judgment in cases of impeachment shall not extend further than removal from office and a disqualification to hold and enjoy any office of honor, trust, of profit under the United States." In the State of Illinois, in the State of Wisconsin, and other States, there are criminal statutes, in which, on the commission of certain offenses, a part of the punishment which is imposed by express statute is made the deprivation of this right to hold an office, disqualification forever to hold an office. It is part and parcel of the judgment in a criminal case. It carries that effect with it. Many of the States provide that when a person has been convicted of an offense amounting to a felony he shall not only be deprived of the right to hold office, but the right to vote as a citizen; his citizenship is forfeited. Sir, this is a penalty, a new penalty, an additional penalty imposed after the fact has transpired, after the crime has been committed. Where a new punishment is provided by law for an offense which has already been committed, unless the law which provides for it expressly saves it, the old penalty is gone. Such is the decision of all criminal courts in all States and countries. You cannot change the punishment of the offense without wiping out the old penalty, and here, sir, if you insert by way of a constitutional amendment this ex post facto provision, a bill of attainder, for it is nothing more nor less, it wipes out the old penalty, and all the penalties which attach will be the penalties which attach under this provision, unless the provision itself provides for saving the old penalty. But, Mr. President, there is another objection to this proposed amendment as it stands. This amendment applies equally to those who were forced into the rebel service as to those who went in voluntarily. I call the attention of Senators to the fact that the men who were conscripted into the rebel service, men who were carried into it at the point of the bayonet, men who were hunted all over the States of the South by the myrmidons of this rebellion to compel them to enter the service, are just as much subjected to penalties under this amendment as those who went into it of their own free will. Mr. President, has it come to this, that in this high place and in this body, we can make no distinction between the innocent and the guilty; no distinction in favor of those men who have been hunted like wild beasts from valley to valley all over the States of the South, and forced, conscripted, compelled to go into the service against their will, but that they are to stand upon precisely the same ground with the men who were guilty of this offense from the beginning? Sir, public judgment revolts against the proposition, and the conscience and the humanity of the American people will stamp this proposition as being in violation of every principle of justice and against the humanity of the age. It is beyond belief that the Senate of the United States proposes to treat these men who have been hunted, conscripted, and forced at the point of the bayonet to go into the rebellion, as if they were equally guilty with the leaders of the rebellion. Mr. President, I speak of the injustice of the proposition in this respect. What hope is there that a proposition like that will receive the sanction of the American people? None whatever. It ought not to receive their sanction, for it is founded in injustice, that injustice which annihilates the distinctions between innocence and guilt, between the men who have suffered, and suffered more than the men of the North have suffered; who have been conscripted, forced into the rebellion, and compelled at the point of the bayonet to do its bidding, and the men who went into it of their own free will. Sir, it is perhaps predestined that this resolution must pass in this form. It has perhaps passed through one of those consultations where results are arrived at that no considerations can change. Nothing can modify it. It must be, like the decrees of fate, accomplished. But, sir, it does seem to me that this Senate ought to pause before they abolish all distinction in the southern States between those who were

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forced into the rebel army and those who went in of their own free will. But, sir, there is another objection to this amendment as it stands. It proposes to annul in some cases the pardons and amnesties which have already been granted under the laws of Congress, and the proclamations of the President issued in pursuance thereof. Are we prepared to do that? Can this Congress stand before this country and the civilized world and say, "We authorized the President of the United States by proclamations to declare full amnesty and pardon upon certain terms and conditions; that amnesty and pardon has been extended; the oaths of allegiance have been taken; these men have in good faith accepted the conditions of the pardon and amnesty; and yet Congress proposes by a constitutional amendment to annul those pardons and wipe out that amnesty?" On what kind of principle can we stand before the civilized world and do that? That I may make no mistake I desire to read the section of the statute which authorized both President Lincoln and President Johnson to grant pardon and amnesty to those who had taken part in the rebellion. On the 17th of July, 1862, Congress enacted in these words: "That the President is hereby authorized, at any time hereafter"— No limitation as to time— "by proclamation, to extend to Persons who may have participated in the existing rebellion in any State or part thereof, pardon and amnesty, with such exceptions and at such time and on such conditions as he may deem expedient for the public welfare." Now, Mr. President, independent of that authority which the Constitution confers upon the President as the chief Executive to issue pardons to persons who are guilty of offenses against the laws of the United States, here is an express provision enacted by Congress, 2916 THE CONGRESSIONAL GLOBE May 31, authorizing the President, as he should deem expedient for the public welfare, to grant amnesty and pardon to those who had been engaged in this rebellion. In pursuance of this statute, Mr. Lincoln, President of the United States, in December following the passage of this law did issue a proclamation granting pardon and amnesty to persons who had been engaged in this rebellion, upon the terms and conditions therein specified. I read from that proclamation: `Whereas in and by the Constitution of the United States it is provided that the President `shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment;' and whereas a rebellion now exists whereby the loyal State governments of several States have for a long time been subverted, and many persons have committed, and are now guilty of, treason against the United States; and whereas, with reference to said rebellion and treason, laws have been enacted by Congress, declaring forfeitures and confiscation of property and liberation of slaves, all upon terms and conditions therein stated, and also declaring that the President was thereby authorized at any time thereafter, by proclamation, to extend to persons who may have participated in the existing rebellion, in any State or part thereof, pardon and amnesty, with such exceptions and at such times and on such conditions as he may deem expedient for the public welfare; and whereas the congressional declaration for limited and conditional pardon accords with well-established judicial exposition of the pardoning power; and whereas, with reference to said rebellion, the President of the United States has issued several proclamations, with provisions in regard to the liberation of slaves; and whereas it is now desired by some persons heretofore engaged in said rebellion to resume their allegiance to the United States, and to reinaugurate loyal State governments within and for their respective States: Therefore, I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known to all persons who have, directly or by implication, participated in the existing rebellion, except as hereinafter excepted, that a full pardon is hereby granted to them and each of them, with restoration of all rights of property, except as to slaves." The conditions were the taking of a certain oath which is herein mentioned, and which it is not necessary that I should read. Now, the persons who were excepted from the benefits of this pardon and amnesty granted by President Lincoln, were as follows: "The persons excepted from the benefits of the fore-going provisions are all who are, or shall have been, civil or diplomatic officers or agents of the so-called confederate government; all who have left judicial stations under the United States to aid the rebellion; all who are, or shall have been, military or naval officers of said so-called confederate government above the rank of colonel in the army or of lieutenant in the navy; all who left seats in the United States Congress to aid the rebellion; all who

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resigned commissions in the Army or Navy of the United States and afterwards aided the rebellion; and all who have engaged in any way in treating colored persons, or white persons in charge of such, otherwise than lawfully as prisoners of war, and which persons may have been found in the United States service as soldiers, seamen, or in any other capacity." All these classes of persons were excepted from this pardon and amnesty; but the constitutional amendment now proposed to be inserted includes very many of those persons to whom pardon and amnesty were extended under the Constitution and laws of the United States by President Lincoln. Now, I ask, by what right do you undertake to annul that amnesty and take away that pardon? Is it upon the ground that might gives right, and that if by any proceeding the Constitution of the United States can be amended so as in effect to work an ex post facto attainder of men to whom pardon and amnesty have been extended, you will do it? Mr, MORRILL. Will the Senator allow me to ask him a question? Mr. DOOLITTLE. If it is right on this point. Mr. MORRILL. Are we to understand the Senator to maintain that amnesty and pardon necessarily relieve from all civil disabilities, and grant restoration of all civil rights? Mr. DOOLITTLE. I think so, undoubtedly. I think undoubtedly that where an offense is committed by any person against the laws of the United States, and the President, in pursuance of the Constitution and laws, grants full pardon and amnesty to the offender, he is restored to his position as a citizen to all intents and purposes. Mr. JOHNSON. The honorable member perhaps might state it in this way: one of the acts we have passed during the rebellion provides that for the offenses stated in that act a person may be indicted and tried and punished, and it provided, as a part of the punishment, for his exclusion from the right to hold office. Now, I submit to my friend from Maine whether if one has been, convicted under that act, and has been adjudged to suffer that punishment, and the President then should pardon him the pardon would not remove the disability consequent upon that judgment. The question in relation to the general effect of the pardoning power of the President has been discussed in the Supreme Court, so far as the exercise of that power concerns the obligation to take the oath which we have prescribed for permission to practice in the courts of the United States. The Senate will remember that the same oath which we take here every lawyer is required to take before he can practice in the courts of the United States. The validity of that act, as far as counsel is concerned, was one of the questions which were argued and reargued by direction of the court at the last term; and as the two gentlemen who applied to practice without taking the oath had been pardoned by the President, another question was argued, whether the effect of the pardon was not to exempt them from the obligation to take the oath, and upon that question, I have reason to believe, the Supreme Court was divided. Certainly, from all accounts, four of the judges thought that the pardon did operate as an exemption, and one doubted; and the question is now held under advisement, to be settled the one way or the other when the Supreme Court meets; but the authorities cited — I have not them in my memory exactly — went very far, as I thought, to prove that the operation of the pardon was to clear the party pardoned from the obligation to take that oath; and that upon the ground that the oath itself excluding a party from the privilege of practicing in the courts of the United States was in the nature of a penalty. Mr. HOWE. Mr. President— Mr. GRIMES. Let me say one word. Mr. DOOLITTLE. All this is in my speech. Mr. HOWE. I wish the Senator from Maryland, as he was giving us the state of the authorities on this question, would tell us whether he knows of any authority which has gone to the extent of declaring that either an amnesty or a pardon can impose any limitation upon the power of the people of the United States through an amendment of their Constitution to fix the qualifications of officers. Mr. JOHNSON. That is not the question to which I spoke; it is quite another inquiry. I was speaking of the operation of a statute. Mr. HOWE. But it is the question which the Senator from Maine was suggesting. Mr. GRIMES. The Senator from Wisconsin [Mr. Howe] has hit at the very suggestion which I was about to make. It may be, and probably is, that in the case put by the Senator from Maryland, where the disability to hold future office was attached to the commission of a crime which had been proved against the party, that would be regarded as a part of the penalty; but the fallacy of the Senator from Wisconsin [Mr. DOOLITTLE] is, that he assumes that this disability embodied in the third section is as a penalty for an offense committed. It is intended as a prevention against the future commission of offenses, the presumption being fair and legitimate that the man who has once violated his oath will be more liable to violate his fealty to the Government in the future.

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Mr. MORRILL. Before the honorable Senator from Wisconsin proceeds, I trust he will allow me a moment as I seem to have been misunderstood. I did not intend to interrupt the line of his remarks; but I did intend to bring to his mind the question whether he recognized what I regard as an obvious distinction between the penalty which the State affixes to a crime and that disability which the State imposes and has the right to impose against persons whom it does not choose to intrust with official station. That was the distinction, and I wished to see if the honorable Senator recognized it. Mr. DOOLITTLE. The question of the effect of the pardon upon men who have been convicted of offenses is pretty well understood by all who are familiar with judicial proceedings. We all know that if a man is convicted of felony a full pardon restores him to his civil rights. He may be pardoned on condition that he shall not be restored to his civil rights; and if the pardon expresses that condition it is good. He may be pardoned out of the State prison on the condition that he shall leave the State. He may be pardoned out on the condition that he shall not be restored to his civil rights as a citizen, his right to vote and hold office. But when an unlimited, unconditional pardon is given it covers the whole ground. The question in regard to lawyers is altogether a different case from the case of a man who has committed an offense, because to practice law is the lawyer's business, his profession, he lives by it, and to take it from him is to deprive him of a valuable thing. The other is a question which goes to disability as to civil rights growing out of the commission of a crime. I have said, Mr. President, that Mr. Lincoln's proclamation specified certain persons that were excepted from the operation of the amnesty which he granted. Mr. Johnson after he became President, on the 29th of May, 1865, in pursuance of the statute which I have read, and which gave him full authority to act in the case and to specify the terms and conditions upon which amnesty and pardon should be given, issued a proclamation in which he used the following language: "Whereas the President of the United States, on the 8th day of December, A. D. 1863, and on the 26th day of March, A. D. 1864, did, with the object to, suppress the existing rebellion, to induce all persons to return to their loyalty, and to restore the authority of the United States, issue proclamations offering amnesty and pardon to certain persons who had directly or by implication participated in the said rebellion; and whereas many persons who had so engaged in said rebellion have, since the issuance of said proclamations; failed or neglected to take the benefits offered thereby; and whereas many persons who have been justly deprived of all claim to amnesty and pardon thereunder, by reason of their participation directly or by implication in said rebellion, and continued hostility to the Government of the United States since the date of said proclamation, now desire to apply for and obtain amnesty and pardon: "To the end, therefore, that the authority of the Government of the United States may be restored, and that peace, order, and freedom may be established, I, Andrew Johnson, President of the United States, do proclaim and declare that I hereby grant to all persons who have, directly or indirectly, participated in the existing rebellion, except as hereinafter excepted, amnesty and pardon, with restoration of all rights of property, except as to slaves, and except in cases where legal proceedings, under the laws of the United States providing for the confiscation of property of persons engaged in rebellion, have been instituted; but upon the condition, nevertheless, that every such person shall take and subscribe the following oath, (or affirmation,) and thenceforward keep and maintain said oath inviolate; and which oath shall be registered for permanent preservation, and shall be of the tenor and effect following, to wit: I, ________ ________ do solemnly swear, (or affirm,) in presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States, and the Union of the States thereunder: and that I will in like manner abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves. So help me God.' " Mr. President, the question is sometimes asked, where did Mr. Johnson, as President, get the power to prescribe any such condition as this? Here is the statute, in the twelfth volume of the Statutes-at-Large, page 592, in which Congress in express terms declared that he should have power to grant pardon and amnesty "with such exceptions, and at such time, and on such conditions as he may deem expedient for the public welfare." He deemed it expedient for the public welfare, in granting this pardon and amnesty, to require of those who accepted it that they should take that oath. He had authority, under the statute, to prescribe it as one of the conditions of the amnesty granted; and the oath is, that henceforth they will faithfully support and defend the Constitution of the United States and the Union of

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1866 THE CONGRESSIONAL GLOBE 2917 the States thereunder, and that they will in like manner abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves. There is where he got the power. At all events, if there were any doubt about his having the power under the language of the Constitution itself, there is an authority given by Congress to him to say that if the men who had been engaged in the rebellion would take an oath to support the Constitution henceforth, and to support the proclamations emancipating slaves, they should have pardon. Sir, in addition to that oath he went further and put into the very pardons themselves which were granted to the individuals, terms and conditions there expressed. Mr. SAULSBURY. Mr. President— Mr. DOOLITTLE. I hope the Senator from Delaware will not interrupt me. I have been very much interrupted, and have had three or four speeches interjected into my speech now. It costs too much to print a speech with the speeches of others in it. Mr. Johnson, in his proclamation from which I have read, specified the exceptions, namely: "The following classes of persons are excepted from the benefits of this proclamation: first, all who are or shall have been pretended civil or diplomatic officers or otherwise domestic or foreign agents of the pretended government; second, all who left judicial stations under the United States to aid the rebellion; third, all who shall have been military or naval officers of said pretended confederate government above the rank of colonel in the army or lieutenant in the navy; fourth, all who left seats in the Congress of the United States to aid the rebellion; fifth, all who resigned or tendered resignations of their commissions in the Army or Navy of the United States to evade duty in resisting the rebellion; sixth, all who have engaged in any way in treating otherwise than lawfully as prisoners of war persons found in the United States service as officers, soldier, seamen, or in other capacities; seventh, all persons who have been or are absentees from the United States for the purpose of aiding the rebellion; eighth, all military and naval officers in the rebel service who were educated by the Government in the Military Academy at West Point or the United States Naval Academy; ninth, all persons who held the pretended offices of Governors of States in insurrection against the United States; tenth, all persons who left their homes within the jurisdiction and protection of the United States, and passed beyond the Federal military lines into the pretended confederate States for the purpose of aiding the rebellion; eleventh, all persons who have been engaged in the destruction of the commerce of the United States upon the high seas, and all persons who have made raids into the United States from Canada, or been engaged in destroying the commerce of the United States upon the lakes and rivers that separate the British Provinces from the United States; twelfth, all persons who, at the time when they seek to obtain the benefits hereof by taking the oath herein prescribed, are in military, naval, or civil confinement or custody, or under bonds of the civil, military, or naval authorities or agents of the United States as prisoners of war, or persons detained for offenses of any kind, either before or after conviction; thirteenth, all persons who have voluntarily participated in said rebellion, and the estimated value of whose taxable property is over twenty thousand dollars; fourteenth, all persons who have taken the oath of amnesty as prescribed in the President's proclamation of December 8, A. D. 1863, or an oath of allegiance to the Government of the United States since the date of said proclamation and who have not thenceforward kept and maintained the same inviolate: Provided, That special application may be made to the President for pardon by any person belonging to the excepted classes; and such clemency will be liberally extended as may be consistent with the facts of the case and the peace and dignity of the United States." These were the terms of amnesty and pardon which were proclaimed by the President, in pursuance of the express statute passed by the Congress of the United States. Now, sir, this amendment proposed to the Constitution embraces large numbers of persons to whom pardon and amnesty have already been given. I know it may be said that by an amendment of the Constitution of the United States, which is the supreme law of the land, you can annul all existing rights. You could, perhaps, by an amendment to the Constitution of the United States, enact a provision which would deprive individual citizens of their property, and vest the whole of it in the government of a State or in the Government of the United States; you might, perhaps, by a constitutional amendment, pass a bill of attainder by which certain men should be sentenced to death and to corruption of blood; but, sir, would it be right? That is the question. Where men in good faith have taken this oath and accepted the terms of this amnesty and pardon, is it right to undertake, by a constitutional amendment, to rob them of this vested right? Sir, I have never been taught to believe that might was right, or that such a provision would be right because we had the power to pass it. I

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maintain that good faith, the good faith of this Government which was pledged by the Congress of the United States, and the President acting under the authority of Congress, requires us not to undertake to destroy or take away the rights which we ourselves have vested. Our honor is involved in it, and we cannot, as honorable men, it seems to me, undertake to annul what we ourselves have given and they have accepted in good faith. While upon this subject of pardons, as so much has been said from time to time of the numbers of pardons that have been granted, I beg leave to state from a paper which I hold in my hand, furnished to me, and which I believe to be correct, that there still remain unpardoned, liable to trial and to conviction and punishment among the chief leaders of the rebellion, one hundred and thirty major and brigadier generals, eighty-eight members of the confederate congress, so called, one hundred and fifty-eight ex-United States Army officers, and one hundred and twenty-two ex-United States Navy officers, who left our service to join the rebellion, and of the prominent rebel officials, like cabinet officers and governors of States, thirty-seven. In all five hundred and thirty-five of these principal officers remain unpardoned. They are in the hands of the law, liable to be tried, certainly all the civilians at least. As to major generals and brigadier generals who surrendered, the terms of the surrender may control the good faith of the United States on the question of their trial, conviction, and punishment. Mr. President, to this amendment I object also because it assumes on the part of the Constitution of the United States to fix the qualifications of those officers who hold offices under the State governments. If it were confined to officers under the United States, to Senators and Representatives in Congress, and to all persons holding office under the Government of the United States, I could well see the propriety of the United States prescribing the qualifications of their own officers. But when you go beyond that and undertake by the Constitution of the United States to proscribe the qualifications of officers under the laws and constitutions of the States, it seems to me you are interfering with a question which belongs to the people of the States. In the States of Tennessee, Missouri, Maryland, and West Virginia the people have assumed to pass upon the question for themselves. They prescribe time qualifications of those who shall hold offices under their State governments. I think that is a matter which belongs to the people of the States. I stated yesterday that in my judgment one of the great dangers to be apprehended from inserting this proposition as a part of the constitutional amendment to be submitted would be to prevent the adoption of the residue of the amendment, for I understand this proposition to be to submit all these sections together as one amendment, although there are five or six sections, the subjects-matter of which are entirely distinct. The proposition seems to be to submit them all together, so that if there is one section which three fourths of the States refuse to sanction, all will be lost. I think that certainly if this amendment is to be pressed in its present form each section should be submitted in so many distinct and independent articles so that if any article were adopted by three fourths of the States, that article could become a part of the Constitution. For instance, that article which forbids the assumption of the rebel debt and that article on the subject of the basis of representation might be adopted, when this, from the form in which it stands, would not be able to command the assent or ratification of three fourths of the States, and therefore all might be lost. Now, Mr. President, I confess for one that if constitutional amendments are to be submitted I desire that they should be submitted in such a form that they will be adopted. I want this thing closed up, not kept open forever. If these amendments are submitted in such form as not to receive the sanction of three fourths of the States, where are we? Still in a state of quasi war. I think that this clause which is now proposed to be inserted in the amendment, instead of tending to reconstruction or restoration, has a tendency to obstruct the very thing at which all aim or should aim. I am just as liable to be mistaken as any other person; but it is my deliberate opinion that if on the first day of this session we had admitted into both Houses of Congress those gentlemen who came here and who were prepared in good faith to take the oath which we require to be taken, we should this day be in a much better condition than we are now. I believe that if these men who could take the oath had been admitted, and those who could not take it had been sent home, the people of those States would have found men who would take the oath, there would have been Representatives from many, if not all, of the States, by this time, and we should have presented the spectacle of a united people, the United States, not the disunited States, not a condition of quasi war, a moral warfare, a condition in which we hear from one end of the session almost to the other continual denunciation and vituperation, and which does not tend to peace, does not tend to restoration or the harmony of the States. I believe, sir, that these men would have been able in all these States to have built up a powerful party to support them if we had taken them by the hand, countenanced them, and given them the moral support of Congress and of the Government. But by our treating them as if they were like rebels themselves we discourage

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them and discourage the men who stood with them. I have no doubt of another thing, that if this day the Representatives from all these States who could take the oath of allegiance were in Congress, speaking the voice of a united people to the civilized world, our bonds would stand at ten per cent higher than they do today. I have no doubt of another thing, that had all these States been represented by loyal men taking the oath of allegiance, joining with us heart and hand to speak the united voice of the American people, Maximilian would have left Mexico before now. Sir, did you not read the speech of Roebuck in the British Parliament the other day, the man who from the beginning hoped for the dissolution of the Union, labored for it, denounced the English Government for not interfering to aid the South to dissolve the Union? Mr. CONNESS. I believe, if the Senator will permit me to say it, that he uses the term, applied to our country, of "disunited States." I think he does. Mr. DOOLITTLE. I say that is the position in which you place us and have endeavored to place us from the beginning and from before the beginning of this Congress, while I have struggled to place us in the position of the United States, speaking one voice, rallying under the same flag; and I repeat it here, without twenty-five stars on it, either. Our national salute is thirty-six guns, not twenty-five; our flag bears thirty-six stars, the representatives of thirty-six States of the Union, not twenty-five. And, sir, placed in that position, how much better should we stand before the nations of the earth. Roebuck would not rise in Parliament to say, "Wait a little longer; the war is not yet over; the States are still separated; they are denouncing each other; there is danger of a new civil war breaking out." Mr. President, I say, as I said before, that I claim no more weight for my opinion than belongs to any other person; but this is the light in which I look upon the situation. This 2918 THE CONGRESSIONAL GLOBE May 31, is the danger which is impending over us now, that we are endeavoring to put into this constitutional amendment that which, instead of tending to peace, tends to obstruction, tends not to restore but to keep separated. I had no intention of detaining the Senate at so much length; but I wish to move an amendment to this proposition. After the words "shall have" and before the words "engaged in insurrection or rebellion," in line thirty-seven, I move to insert the word "voluntarily." I shall also propose in the same section, after the word "thereof" and before the word "but," in line thirty-nine, to insert "excepting those who have duly received pardon and amnesty under the Constitution and laws, and will take such oath as shall be required by law." My first amendment is to insert the word "voluntarily," and on that I ask for the yeas and nays. The yeas and nays were ordered. Mr. DAVIS. Mr. President, I do not propose to debate at this time the subject of the proposed amendment to the Constitution of the United States; but I will make a single remark in support of the view taken by the honorable Senator from Wisconsin in relation to his proposition to exempt from the effect of the amendment now pending all the persons who were forced involuntarily into the confederate service. I am somewhat surprised that a proposition so just, so humane, and so politic as that should not receive the unanimous sanction of the Senate. We all know that coercion and a power of compulsion to do a criminal act, which cannot be resisted by the party who is guilty of the act, exempts from culpability and punishment. If that be a true principle in relation to crimes that strike at the peace and welfare of society, and which crimes are supposed, and in fact do generally, import a high degree of moral turpitude, how much more forcibly ought such a principle to be applicable to this proposed amendment to the Constitution. We know, as a matter of public history, that in some of the confederate States there was a universal conscription of every man who could carry a gun. In one of those States, at least, it swept through all classes, from boys of sixteen to men of sixty years of age. These men were not allowed to choose whether or not they would enter into the camp and into the army of the rebellion. The whole country was hunted over to find every man who was capable of bearing arms, and, without regard to his own judgment or his own disposition to enter into the rebellion or to keep out of it, he was forced by a resistless power to become a conscript in the rebel army. There were feeble old men and immature boys who were in great numbers thus forced into the army of the confederate States. Is there anything of justice, much less of policy and statesmanship, that requires that all those soldiers of the rebel army should be inexorably punished? Notwithstanding the position assumed by the Senator from Illinois, that a disqualification for office is no punishment, I maintain that it is a punishment, and a grievous punishment, and such as a great and generous nation, or the representatives of a great and magnanimous people ought not to impose upon such a number of persons. I suppose that if the honorable Senator from Illinois himself was to come in a class, in the form of an amendment to the Constitution, that would

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exclude him during his lifetime from office, he would regard it as some punishment. It is punishment, and punishment of the most grievous and dishonoring character, for a man to be excluded from taking part in the Government of his country by filling such an office as those authorized to fill them might call him to the discharge of the duties of. But, Mr. President, there is another idea connected with this subject that has been forced on my mind. We know from the public prints and the history of the rebellion that late in the war about one third of the armies of the rebels deserted and abandoned their camps and their banner. That was an enormous desertion, and it could only have resulted from the fact that the greater proportion of them were forced into the service and were required to fight for a cause against which they were opposed in principle and sentiment and if left to their own free will would never have entered. This proscriptive amendment is to operate inexorably upon those who willed to go into the confederate service as well as those who were involuntarily, and by a force which was resistless by them, compelled to go into it. It embraces and proscribes during their lifetime those who were involuntarily forced into the service and who abandoned it and deserted it on the first opportunity, as well as those who went into it with a free and deliberate will, and continued in it to the end. In the language of the honorable Senator from Wisconsin, what will a civilized world think of the justice and humanity, much less of the policy, of such a proscription as this? If the object of its friends was to prevent perpetual reunion and a return by the rebel States to loyalty and to true fealty to this Government, it seems to me this would be one of the most effective measures that they could devise to produce such a state of things. I rose, Mr. President, not to enter into this debate, which I expect to do at a later period of it, but simply to urge this single consideration in support of the humane and just and statesmanlike proposition that the honorable Senator from Wisconsin has offered as an amendment to this section of the proposed amendment to the Constitution. Mr. WILLEY. Mr. President, it is a matter of indifference to me whether the amendment proposed by the honorable Senator from Wisconsin be adopted or not. My impression is that if it should be incorporated into the proposed constitutional amendment it will emasculate it pretty effectually, and that the practical result will be that you will find in the end very few individuals who ever entered into the rebellion voluntarily. A few of the more prominent, of course, could not escape; but it would be almost impossible to prove in the southern States, where there would be a general disposition to evade the fact, that any person who has not been very prominently engaged in the rebellion had ever entered into it voluntarily. Indeed, if I understand the argument or affidavit of Mr. Stephens, made before the committee of fifteen, I take it that his plea is that he never entered into the rebellion voluntarily. But, sir, I did not rise so much to say anything upon the amendment offered by the Senator from Wisconsin as to reply to the argument of the Senator from Kentucky, which is but a reiteration of the argument of the Senator from Pennsylvania [Mr. Cowan] the other day, and of the repeated arguments of the Senator from Wisconsin, [Mr. Doolittle] that this amendment is vindictive in its character; that it is ex post facto in its nature; that it is designed as a punishment for the crime of treason. I utterly deny that such is the philosophy of the amendment, or that such can be said properly to be the intention of the amendment. It may, in its results, operate as a punishment, as an odium, as a disgrace upon the parties to whom it shall apply; but, sir, what is the purpose of this amendment? I will state what I understand to be its purpose. It is not to punish the men who engaged in the rebellion for the crime which they have committed; the law in that respect is ample now; but, not being penal in its character, it is precautionary. It looks not to the past, but it has reference, as I understand it, wholly to the future. It is a measure of self-defense. It is designed to prevent a repetition of treason by these men, and being a permanent provision of the Constitution, it is intended to operate as a preventive of treason hereafter by holding out to the people of the United States that such will be the penalty of the offense if they dare to commit it. It is therefore not a measure of punishment, but a measure of self-defense; and the honorable Senator from Wisconsin was, in point of fact, driven to that conclusion at last by the interrogatory propounded to him by his colleague; and then he asked, in consideration of the amnesty proclaimed by Mr. Johnson and of the legislation of Congress on that subject, would it be just, would it be right to incorporate such a provision as this in the Constitution of the United States, excluding these men hereafter forever from holding office? Now, sir, is it right? The duty of the Government and the citizen is reciprocal; the obligation is mutual. The Government owes to its citizen protection; the citizen owes to the Government obedience and support; and I demand to know of the Senator from Wisconsin, or any other Senator, whether there is in the annals of history the case of a Government so benign as has been that of the United States, and where the obligation on the part of the Government has been so perfectly performed and so adequately extended? Do Senators pretend to say that the

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men disqualified by the proposed amendment rebelled because they had any just cause to rebel, any just cause of complaint on the part of the Government; that it had failed to afford them the protection that was due from the Government to them? Do Senators pretend to say that there was the shadow of a pretext to justify these men in going into the rebellion? Then, sir, if they cannot answer these interrogatories in the affirmative, as I know they cannot, and will not dare to do so, how does the case stand? Here was the Federal Government extending to these men ample protection. What did they do? Yield to the Government the support that was due from them to the Government? No, sir; not only did they withhold support from the Government, but they drew the sword to destroy it. And now, sir, the proposition is, shall these men, who have thus forfeited their allegiance and shown how unfaithful they could be to the most benign Government in the world, be allowed again to become the depositories of the political power of the United States, the custodians and executors of our laws and liberties? Would there be any justice or any propriety in allowing men to be again introduced into the Government who have, under such circumstances as these, shown themselves to be so faithless to their trust? That is the question; and looking to the future peace and security of this country, I ask whether it would be just or right to allow men who have thus proven themselves faithless to be again intrusted with the political power of the State. I think not; and upon that ground I think this exclusion is wise, is just, is charitable, and is Christian, and that we would he faithless to our trust if we allowed the interests of the country and its future peace and welfare to be again disturbed by men who have shown themselves thus faithless in the past. And, sir, it does seem to me that there is a degree of presumption in men who have hardly yet washed their hands of the blood of our fellow-citizens that they have shed in their insane efforts to destroy this Government, coming here and clamoring at the door of Congress again for the very political power which they have hitherto used for the destruction of this Government. You may say they will do us no harm by being again allowed to hold office. How was it in the origin of our troubles? How was it when these men were in office before the rebellion commenced? How did they use the power that was intrusted to them? I answer, by sending our vessels away from our shores; by transferring our arms from the North to the South and by depleting the Treasury of the United States by preconcerted arrangements, so that when the rebellion should be precipitated upon the country the power of the Federal Government would he crippled and to a great extent destroyed. Shall we again trust men of this character, who, while acting under the obligation of the oath to support the Constitution of the United States, thus betrayed their country and betrayed their trust? 1866 THE CONGRESSIONAL GLOBE 2919 I hope, sir, that we shall bear no more outcry about the injustice, the inhumanity, and the want of Christian spirit in thus incorporating into our Constitution precautionary measures that will forever prohibit these unfaithful men from again having any part in the Government. They have no moral right to it; they have forfeited it by their past conduct. If, hereafter, they shall show works meet for repentance, and that they are to be relied upon, this provision contains within it the means by which the disability may be removed, and they may be again allowed to participate in the political administration of the Government. Mr. DAVIS. I will say a word in notice of the remarks of the honorable Senator from West Virginia. He and myself and the honorable Senator who now occupies the chair [Mr. Mums] are lawyers. We have read of the atrocious penal code of England, and the number of crimes that are punishable there by death and by transportation. We have read also of some of the benignant principles of law that characterize the administration of the penal code of England; and among those principles is this: it is better, says the law, that ninety-nine guilty men shall escape punishment than that one innocent man shall be punished. But the honorable Senator, in the benignity of his nature, reverses the humane spirit of that maxim of the law, and lest some men, under the pretext of having been involuntarily forced into the military service of the rebellion, should escape, he is anxious to have them all punished, guilty and innocent. That is about the spirit of his remarks. In the administration of this penal code of England, as it has been transferred to the United States and to all the States of America, what is the instruction rendered, I suppose by yourself, sir, if you ever presided in a criminal court, and certainly by every judge in America who has presided in a criminal court? "If, upon a review of the whole case, you have reasonable doubt of the guilt of the accused it is your duty to give the accused the benefit of that doubt, and to acquit." Mr. WILLEY. The honorable Senator will allow me to say that he totally misinterprets my remarks. The point of my remarks was to show that the guilt or innocence of the party was not the matter at issue; that we were not trying them for their crimes, but we were providing security for the future peace of the country.

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Mr. DAVIS. The honorable Senator is an American citizen; he is a patriot; he is a Senator; and in addition to that he is a professor of the Christian religion, a follower of the lowly and humble Redeemer, whose death was given to expiate the sins of a fallen and a wicked world. What is the spirit that is taught to him by his Great Teacher? You say forgive your enemies; you say turn your other cheek to the man who smites you. You are taught benevolence and philanthropy and forgiveness by the precepts of the religion which the honorable Senator professes and of which, I have no doubt, he is a very exemplary member; but it seems to me that he forgot all the spirit of his Christian charity and faith in the tenor of the remarks which he made. The honorable Senator stated another principle to which I fully subscribe. It was this: that the duty of protection by the Government and the duty of obedience to the Government are mutual. It is the duty of the citizen to obey the law; and it is the duty of the Government to protect the citizen and to enable him to perform his obligation to obey the law. Now, sir, what has been the condition and what was the condition of things at, the commencement of this rebellion? In the State of Tennessee there were two issues before the people submitted to the aggregate vote of the State. The one was whether the State would call a convention even to consider the subject of secession, and the other was whether the State would secede. On the first issue there were nearly fifteen thousand votes of a majority of the people of the State of Tennessee against the calling of a convention; and upon the question of secession there was a majority of upward of fifty-six thousand votes in that State against it. How was it in the State of Virginia, the Senator's own State? There was a large majority of the people of Virginia against secession, and that majority was demonstrated by an actual vote at the polls of the people. Now, apply the principle of the honorable Senator. Here was a majority of fifty-six thousand people in the State of Tennessee, and a majority of from twelve to fifteen thousand loyal people in his own State. They expressed opposition to secession at the polls. What was the duty and the obligation of the Government, according to the honorable Senator's own maxim and according to the universal maxim of justice and humanity as between governors and governed? These people were anxious to adhere to the Union, to perform their duties loyally as citizens. They expressed that disposition and purpose in the most solemn manner, and in the State of Tennessee by an overwhelming vote; According to the honorable Senator's maxim — a principle to which I yield my hearty assent, and to which no just and humane man can offer a dissent — the Government of the United States ought to have upheld, supported, and protected this fifty-six thousand majority in the State of Tennessee in their wish and purpose to adhere to the Union; and so of the Senator's own State. Did the Government of the Union perform its obligation to the people? The Senator asks triumphantly, was there ever a Government in the world, since the commencement of time, that so perfectly and fully discharged all its obligations to these people who went into the rebellion? Sir, I say that at that great crisis, at the time when the question of loyalty and disloyalty was to be effectively and finally decided, the Government was in flagrant default. It was not in the act of protecting the majorities in those States and the people in the other southern States who were opposed to secession in their position of fidelity to the Government. None of the honorable Senator's zeal, none of his eloquence, none of his vehemence of declamation against these rebels can shake the truth of that position. The true and loyal men who constituted large majorities in many of the southern States were abandoned, or if they were not abandoned, they were left wholly without defense and protection by the Government that he wants now to oppress them. Sir, I tell the honorable Senator, and it is the truth of the case, that before the Government of the United States can hold these men rigorously to the charge of treason, to the consequences of treason and rebellion, to its forfeitures, its punishments, and disabilities, he and those who favor such a policy ought to be prepared to demonstrate beyond question that the Government performed its duty fully and effectively toward these people. That cannot be done. It was not the fact. Then, I assume, upon the gentleman's own principle and the fair deductions from it, that every man who was willing to remain faithful to the Government of the United States, provided he had received such protection and support from the Government as would have enabled him to maintain that position, ought to come under the benefit of the reservation, the exception of the honorable Senator from Wisconsin. If there is any doubt in discriminating the guilty from the innocent, those who ought to receive the immunity from those who ought not to receive it, I, to save the innocent, would give it indefinitely to all, just as the benignant principle of the common law of England declares that if there is a doubt, the accused shall receive the benefit of the doubt, and that it is better for ninety-nine guilty men to escape than that one innocent man should be punished. But, Mr. President, I do not intend at this time to enter into a discussion on this subject. I shall avail myself of the right which the honorable Senator from Wisconsin said he would. At a future time, in the progress of this debate, it is my purpose to enter into it, and to enter into it with more fullness and detail of principle and of fact than I have attempted upon the present occasion.

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Mr. SAULSBURY. It is not my intention now to enter into the discussion of the details of this proposition. I intend to do so before the debate closes. The immediate question before the Senate, as I understand, is to insert after the words "shall have," in the thirty-seventh line of this third section, the word "voluntarily;" so that it will read: That no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the Government of the United States, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State to support the Constitution of the United States, shall have voluntarily engaged in insurrection or rebellion against the same, &c. The proposition is to insert the word "voluntarily." It is objected to, I understand. Upon what ground? I should like some gentleman to answer the question, upon what ground do Senators object to the insertion of the word "voluntarily?" If am compelled to do a thing against my will, if I cannot avoid it, shall my involuntary service be imputed to me as a crime? Sir, has not the spirit of vengeance gone far enough? Are you not satisfied with visiting punishments upon voluntary acts, but will you also visit them upon involuntary and unwilling acts? I read in the newspapers that we live in the nineteenth century, the Christian age, illuminated from the great East; that we receive our instructions in religion, morals, trade, and everything else from New England and yet one of these modern doctrines and modern teachings is this, that involuntary acts are to be punished! That is the direct proposition before the American Senate; and when an amendment is seriously offered providing that men who have been constrained by force to enter into what you call the "rebel" service, shall be exempted from criminality, a star arises in the East, though it may not be over the plains of Bethlehem, and though it may not be heralded by the angelic voices which sang "peace on earth, and good-will to men," proclaiming, "Though you may have been constrained and forced to enter that service, yet you shall be punished." That is the enlightenment of the nineteenth century! That is Christian sentiment as expounded by New England! Mr. President, I am surprised at my friend from West Virginia. No man has a greater respect for him personally, and for his character as a Christian gentleman, than myself. I have heard him upon the platform inculcating the precepts of the Christian religion. I profess, myself, nothing of the kind. I only wish I possessed it. But he advocates, as I understand, not only that a voluntary criminal act shall be punished, but that an act done involuntarily, against the will — that is the meaning of it — by compulsion and per force, shall be visited criminally. Mr. WILLEY. No, sir; the Senator is mistaken. Mr. SAULSBURY. Explain the word "voluntarily" then, which is the word it is proposed to insert. Mr. WILLEY. Does the Senator ask me to explain it, or will he allow me to explain it? Mr. SAULSBURY. Certainly. Mr. WILLEY. I wish to state, Mr. President, most distinctly, that I exclude the idea of punishment utterly from this amendment. It is not the philosophy of the amendment; it is not the principle upon which it is founded. I am not discussing the matter whether it is criminal or not. I only say that this is a precautionary, not a penal measure, looking to the future, not to the past; but that in looking to the future, and in providing for it, it is very right and proper to look to the past, to see whether we may trust men in the future who have been faithless in the past. 2920 THE CONGRESSIONAL GLOBE May 31, Mr. SAULSBURY. Before I proceed to reply to the remarks of the honorable Senator I will state that I was surprised yesterday to hear the honorable chairman of the Judiciary Committee say, in the discussion of this question, that this section was not one which inflicted pains and penalties. He said that no case could be found, that no authority could be cited for that position. I did not interrupt him at the time, but I will say now, before I proceed to reply to the honorable Senator from West Virginia, that if the honorable Senator from Illinois, who is chairman of the Judiciary Committee, had looked into the case ex parte Dorsey, reported in 7 Peters's Alabama Reports, he would have found the whole doctrine explained. It was a case into which I had occasion to look many years ago. He there would have seen this whole doctrine of what pains and penalties are in a legislative act, or in a constitutional prohibition. Without arguing that question I come back to my friend from West Virginia. He has not answered what I said. He only says that he means something in the future; he does not mean anything that has transpired. Now, sir, what does this provision mean? Does it not mean, is it not intended to apply, to that which has transpired? Are you

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going, and is that the object of your legislation, to provide for some contingency in the future? Is it not apparent to everybody, does not everybody know that this is not a measure to have an operation in futuro, but it is a measure to have an operation in præsenti, to apply to existing cases? Then, sir, I return to my original suggestion, and I call upon my honorable friend from West Virginia, or anybody else, to assign a reason why it is that when a man is compelled to do an act, when he has no freedom of choice, he shall be punished for doing it. The proposed amendment only exempts from the consequences of this section those who have involuntarily done these acts. And yet, sir, we here in the year 1866, which has been illuminated by the fulminations which have come up from New England and the northern pulpits, the enlightenment which has been spread all over this continent, that an involuntary act, an act done against the will, contrary to the choice of the individual, is to be visited with highly penal consequences. That is your Christianity; that is your morality; that is your civilization; and on the floor of the Senate of the United States gentlemen who are known in the Christian world as rostrum monitors in behalf of what are called Christian principles, are found advocating such a doctrine. I say these things in no disrespect to the honorable Senator from West Virginia. He knows that. But, sir, the spirit, the animus of the proposition, is only the spirit, the animus that characterizes the entire legislation of Congress at the present time. Six years ago we were a happy, united people. No people on the face of the earth in so short a time had ever so rapidly increased in numbers and grown in power. From thirteen feeble colonies we had grown to be thirty-odd great States. Our flag floated from ocean to ocean and from Lake to Gulf. Upon every mountain-top that flag was planted, and in every valley anthems of praise to this glorious Union were sung. The burdens of Government were unfelt by the humblest and by the highest citizen. We were at peace among ourselves and at peace with all the world. In those days there were some exceptions. In certain quarters of the country the Sabbath was desecrated and the pulpit dishonored by talking of grievances which nobody experienced. A remedy was sought, and the great Republican party was brought into existence to remedy those evils. It came into existence. From 1787 till 1860 we had advanced as no nation, as the history of the world will show, ever did advance. We were happy, prosperous, and free. The party to which my honorable friend from West Virginia now attaches himself, and to which in former years I believe he did not belong, was to remove some imagined evils. It came forward and triumphed, and what have been the fruits of its triumph? A dissevered Union; a war lasting for four long years; a public debt of $4,000,000,000; every household draped in mourning; and every eye bathed in tears. That is the consolation that they have brought to us; that is the remedy they have afforded us. And yet, sir, in the pride of power and in the audacity of supposed superiority, they turn upon us, who have faithfully and consistently stood by the union of these States, and we hear, hissing from their voice, as the words issued from the mouth of the serpent that uncoiled itself among the flowers of Eden, "copperhead," "rebel sympathizer." Mr. President, I have said more than I intended to say; but before this constitutional amendment is finally disposed of I propose to discuss certain questions here. I know what will be said about it in certain presses of the country. I never read one of them under any circumstances, and do not care what they say; but I know they will apply these epithets to me. But, sir, before this joint resolution is finally disposed of I propose to discuss certain questions. I will state the questions that I propose to discuss, and gentlemen who take exception to them may as well look up their authorities. I say that whenever a government de facto is established, although there may be a government de jure, every person yielding obedience to the government de facto is excused, not to be punished for it; he is no traitor, and he is not liable to be hanged nor quartered. That is one question. I propose to discuss another question, without stating my opinion now with reference to it: whether any man in what was called the confederate States who acted under the authority and by compulsion of that government, can be visited with punishment. My opinion of it may be inferred from the statement of the proposition; and let me say to my friends on the other side that if they propose to combat these principles, they had better be prepared with the authorities. The principle I have just mentioned is not only founded in law, but it is founded in the teachings of the fathers. Why, sir, you are drawing a great bill of indictment in this proposition against a whole community, indicting them all as criminals, rebels, and traitors. The thing is abhorrent to the instincts of humanity. What, sir, indict a whole community, simply because there is an imaginary line between them, as guilty of treason; that they are all traitors, all criminals. The thing is impossible. How would you feel, sir, how should I feel, if a gentleman south of the Potomac, that we believed to be a gentleman, should come and extend to us his hand? Would we not take it? If we took it would we not take it as a gentleman? If we believed that he was a traitor, that the crime of treason was upon his soul, the greatest crime known to the law, would we take his hand? Would you, sir? No, you would spurn it, and so would every honest man. I know that the sentiments that I entertain and the opinions I avow are unpopular; but what do I care about

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that? The office of a man intrusted with public position is as much to make public opinion as to be governed by it. If he discharges his office correctly and honestly, though for the moment the discharge of that duty may be unpopular, it will not be long before the public voice will say that he is right. The great difficulty in this whole case has been that there has been a clamor in one section of the country against a subdued and fallen foe, and it is popular to cry out for blood and vengeance, and legislation is being shaped in conformity to that demand of an excited public opinion. I choose to say, for one, I heed not the clamor. Let it come with the whirlwind's power; let it come in the tornado's blast; let it come in the earthquake's shock; I stand unmoved amid the clamor for blood and vengeance. I heed it not. I will not listen to it. It is the voice of error; and it will not be long before the American people. North and South, will awaken and listen to the voice of reason. This cry for blood and vengeance cannot last forever. The eternal God, who sits above, whose essence is love, and whose chief attribute is mercy, says to all His creatures, whether in the open daylight or in the silent hours of the night, "Be charitable; be merciful." But, sir, let me make another remark in reference to this matter. It will be misinterpreted, I know. My motives will be misinterpreted. My position will be misinterpreted. No man will misinterpret it to my face. It is this: recollect that south of the Potomac upon which your amendment is to operate there is a country extensive enough for more even than one empire. It is inhabited by millions of people. They are men who have honestly engaged in resisting your authority, as you have honestly maintained your authority. By the force of arms you have overcome them. They have yielded to that power against which they could not contend. But, sir, there are hundreds and thousands and millions of women and children there who have had nothing to do in what you say was an unlawful resistance to your authority. You tax all those people. You do not allow them a voice upon this floor. They are unheard. They cannot say a word. They have no representation here. If the eternal God was to send an archangel from heaven to plead their cause I do not believe he would be heard in legislative halls. I say that with no disrespect to the Senate. I am only speaking with reference to the spirit of the times. Your legislation affects that great class of people. Taxation without representation is abhorrent to every American mind. The denial of representation caused your fathers in revolutionary times, feeble as they were, to appeal to the God of battles for the arbitrament of the contest. And yet, sir, with all their lessons before us; with the illustrious example of George Washington; with the example of the noble men who signed the Declaration of Independence, pledging their lives, their fortunes, and their sacred honor to maintain their declaration that taxation without representation was a principle to which no freeman could submit, you exclude from your halls of legislation eleven of the States of this Union, twenty-two Senators from this Chamber; and in their absence you propose to pass and to submit to them a constitutional amendment. Mr. President, if they are not fit to be represented here, are they in any sense fit to have such a proposition submitted to them? They are either in the Union or out of the Union. If they are in the Union, the Constitution says that every State shall be represented by two Senators upon this floor. They have elected their Senators; they have presented themselves here; but you say they shall not be admitted; and yet in the face of your own act, and in violent inconsistency with your own act, you propose to submit to them a proposition to amend the Constitution of the United States. I ask you, sir, if they are not in a condition to be represented upon this floor, are they in a condition to have a proposition of this kind submitted to them? The only proposition that I have seen in Congress — I will not refer to the proceedings of the other House — which is consistent with congressional action is the proposition of a gentleman from Pennsylvania, from the city of Lancaster, by the name of Thaddeus Stevens. He treats them as out of the Union, having no part or parcel in it, and he proposes to govern them as districts and sections of country subject to the authority of the United States, but not being part or parcel of it. While I think that proposition is perfectly untenable, yet viewing your legislation in the light in which I conceive it, I say he has interpreted the whole theory of the system. I have no respect for him as a legislator, and do not know him as a man. Now, sir, is it possible that there are three men on the floor of this Senate who honestly believe that the people down South are all traitors? The law says that treason is the 1866 THE CONGRESSIONAL GLOBE 2921 highest crime that can be committed; but, sir, the instincts of your nature, acting responsively to the teachings of the law, tell you that those who have acted in obedience to a de facto government are not guilty of treason, and though it may be improper, though it may be imprudent — and I have been sometimes told by my friends that I do not always weigh my words — I now avow on the floor of the American Senate that you may arraign before a just court and an impartial jury as many of these southern gentlemen as you please who, after their States had seceded,

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yielded obedience to the government de facto over them, and you never can convict them of having committed any crime. For twenty years I have studied the law, and I have studied it that length of time with but little effect if I am not certain in the conclusion to which I have arrived. At the same time I may say, to prevent misrepresentation, and it is well known that while I have been opposed to the acts of the past Administration, and to many of the present, I never sympathized with the movement of these southern gentlemen. The time has gone by to apply to the Democratic party or myself the epithet of "sympathizer with the rebellion." I state my opinions as I honestly entertain them; and when legal questions are presented, and not only legal questions but questions underlying the very science of government itself, which have been discussed by such great luminaries as Burke in the British Parliament, and by all the able writers upon international and municipal law, I may avow a concurrence in their opinion without subjecting myself to remarks prejudicial, not to my loyalty — a word that I do not know the use of in a republican form of government — but prejudicial to my devotion to the Constitution and the Government of the country under which I was born and hope to die. I seek controversy with no man; I avoid none. The PRESIDENT pro tempore. The Senator from Wisconsin asks that the question, when taken upon the amendment to the amendment, may be taken by yeas and nays. The yeas and nays were ordered. Mr. HOWARD. I wish to make a single observation. Mr. JOHNSON. If the honorable member proposes to debate the question at any length I hope he will give way to a motion to adjourn. Mr. HOWARD. I do not propose to debate it at any length. Mr. FESSENDEN. We ought to have a short executive session. Mr. HOWARD. I shall be through in a moment, and then I shall be entirely willing to take the vote on this amendment. Indeed, I will not say a word if there be a possibility of taking a vote now on the amendments offered by the Senator from Wisconsin. Mr. FESSENDEN, and others. Let us vote on them now. Mr. HOWARD. If no other gentleman wishes to address the Senate upon those two amendments, and the Senate is ready to take a vote upon them, I shall not occupy any time of the Senate by remarks. Several SENATORS. Let us vote. Mr. HOWARD. Very well. The PRESIDENT pro tempore. Is the Senate ready for the question on the proposed amendment to the amendment? Mr. HOWARD. Are both the amendments offered by the Senator from Wisconsin included in the motion? The PRESIDENT pro tempore. But one question can be taken at a time. Mr. JOHNSON. The question now is on the amendment proposing to insert the word "voluntarily." as I understand it. The PRESIDENT pro tempore. That is the question. The question being taken by yeas and nays, resulted — yeas 10, nays 30; as follows: YEAS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury—10. NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Croswell, Edmunds, Fessenden, Foster, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomerov, Ramsey, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Williams, and Wilson—30. ABSENT—Messrs. Brown, Dixon, Grimes, McDougall, Nesmith, Sherman, Van Winkle, Wright, and Yates —9. So the amendment to the amendment was rejected. Mr. DOOLITTLE. I now move the other amendment of which I gave notice, to insert after the word "thereof" in the thirty-ninth line the words "excepting those who have duly received pardon and amnesty under the Constitution and laws, and will take such oath as shall be required by law," and on that I ask for the yeas and nays. The yeas and nays were ordered. Mr. HENDRICKS. I wish to inquire of the Senator from Wisconsin, what is the meaning of the last clause of his amendment? Does it contemplate the enactment of a law in the future prescribing some new oath, or does it refer to the oath which has been already taken in pursuance of the proclamation of the President? Mr. DOOLITTLE. Perhaps that provision of the amendment is not necessary to the idea, and I will omit that

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portion of it and let it stand simply as a test of the question whether those who have received pardon and amnesty shall be excepted from the effect of this amendment or not. Mr. HENDRICKS. I think that is in better shape. Mr. KIRKWOOD. I should like to hear it read as modified. The SECRETARY. The words proposed to be inserted are, "excepting those who have duly received pardon and amnesty under the Constitution and laws." Mr. KIRKWOOD. I understand that will dispense with the taking of the test oath. Is that the Senator's intention? Mr. DOOLITTLE. No, sir; not at all. Mr. KIRKWOOD. The words requiring the taking of the test oath are stricken out. Mr. DOOLITTLE. The test oath is still the law of the land. This has no effect on that law. Mr. KIRKWOOD. This would override that if we adopt it. Mr. DOOLITTLE. Not at all. This simply excepts from the provision of the section those who have received pardon and amnesty. I maintain that where we have granted under the Constitution and laws pardon and amnesty we have no right, though we have the power, to put them under the disability again. Mr. HOWARD. One word. I desire to ask the Senator from Wisconsin whether the pardon and amnesty of which he speaks extend so far as to remove the disability created by the confiscation act of 1862 against the holding of office under the United States. Mr. FESSENDEN. I desire to ask my friend from Michigan whether that would make any particle of difference. We all know that this proposition has no chance of succeeding in any shape. Mr. HOWARD. Not the slightest; but the Senator from Wisconsin seems to make a point on that question. Mr. FESSENDEN and others. Let us vote. Mr. WILLEY. I wish to ask a question of the Senator from Wisconsin. Suppose there are pardons, as there are likely to be a good many, between the time this amendment shall be propounded by Congress and the time it may be adopted by the Legislatures; what will be its application to pardons granted between this time and that? Mr. JOHNSON. It would apply. Mr. KIRKWOOD. I should like to hear the amendment read as it was first offered. The Secretary read the amendment as originally offered by Mr. Doolittle. Mr. JOHNSON. Does the honorable member from Wisconsin propose to exclude all those who may after the adoption of the constitutional amendment receive pardon? That it seems to me would be the effect as it now stands. I move, therefore, to amend it by inserting the words "or shall receive." The PRESIDENT pro tempore. The amendment of the Senator from Wisconsin is not amendable. The question is on the amendment of the Senator from Wisconsin to the amendment of the Senator from Michigan. The question being taken by yeas and nays, resulted—yeas 10, nays 32; as follows: YEAS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury— 10. NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sprague, Stewart, Stunner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—32. ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sherman, Wright, and Yates—7. So the amendment to the amendment was rejected. The question recurring upon the amendment of Mr. Johnson, the yeas and nays were taken, with the following result: YEAS—Messrs. Anthony, Chandler, Clark Conness, Cronin, Creswell, Edmunds, Fessendon, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—32. NAYS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury—10. ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sherman, Wright, and Yates—7. So the amendment was agreed to. Mr. FESSENDEN. I suppose it is not intended to go further with this subject this evening. I move that the Senate proceed to the consideration of executive business. The motion was agreed to; and after some time spent in executive session, the doors were reopened, and the

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Senate adjourned.

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2938 THE CONGRESSIONAL GLOBE June 4, RECONSTRUCTION. The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment proposed by Mr. HOWARD, to insert the following after section three of the proposed article of constitutional amendment: Sec. 4. The obligations of the United States, incurred in suppressing insurrection, or in defense of the union, or for payment of bounties or pensions incident thereto, shall remain inviolate. Mr. HENDRICKS. Mr. President, nothing but a sense of imperative duty induces me to address the Senate upon this occasion. The Constitution is to be changed; the foundations of the Government are to be disturbed; some of the old oak timbers are to be removed, and timber of recent growth is to be substituted. Upon the foundations fixed by the fathers our institutions have rested firmly and securely for three quarters of a century. They have stood unmoved by the contests of ambitious leaders, the angry strife of parties, and the rolling waves of war. In peace and in war; in the turbulence of times of financial embarrassment, and the corruptions attendant upon the accumulation of great wealth; in every possible state and condition of our society, the Constitution has borne the test; and the fact now stands conceded that it established a system of government entirely adapted to our wants and condition as a people. This is proven beyond cavil and question by the prosperity and individual happiness that attended our growth, and the greatness and power to which we attained. The prosperity of the citizen, his security and happiness, and the might and grandeur of the nation attest the excellence of our form of government. The blessings of the past are our guarantee for the future if we but maintain our institutions as they are. And now, sir, in this the most unsafe period of our history; when the passions excited by the war are yet fierce; when sectional controversies run high, and party strife is raging; when eleven States are absent from this Chamber, and other sections, seizing the opportunity, seek to aggrandize their power, and to fasten upon the country a partial and unequal policy; when the lust for power and gain carries men beyond the restraints of justice and right; at such a time I cannot remain wholly silent when I see the hand of the partisan and the self-constituted reformer laid upon the sacred work of the fathers. In such a case to speak is a man's duty, though none may heed. But, Mr. President, it is hard work to speak when one knows in advance that no argument, however just and forcible, and no appeal, however patriotic, can influence a single vote; that the authority and law of a political party is over every Senator of the majority; and that it remains now only to register the decree of the secret caucus. At the meeting of Congress, but before the President had delivered his message, and before his views had been officially communicated, the Republican members, in caucus, determined to raise a committee of fifteen to "inquire into the condition of the States which formed the so-called confederate States of America and report whether they or any of them are entitled to be represented in either House of Congress." In most indecent haste the resolution passed both branches, and the committee became fastened upon Congress and the country. Because of its party origin, the work it had to do, and the secret character of its proceedings, that committee came to be known in the country as the "revolutionary tribunal," the "directory," and the "star chamber." Its first report was made some months since, in which it was proposed to reduce the representation of the southern States, but by the aid of the distinguished Senator from Massachusetts, [Mr. SUMNER,] who submits to party restraints upon his judgment with impatience, that measure was defeated. Its second report is now upon our desks. It passed the House, but when it came under discussion in the Senate, and had to bear the test of the independent judgment of Senators, it was found wanting, and its defeat became almost certain. A second defeat of a party programme could not he borne; its effect upon the fall elections would be disastrous. A caucus was called, and we witnessed the astounding spectacle of the withdrawal for the time, of a great legislative measure, touching the Constitution itself, from the Senate that it might be decided in the secret councils of a party. For three days the Senate Chamber was silent, but the discussions were transferred to another room of the Capitol, with closed doors and darkened windows, where party leaders might safely contend for a political and party policy. When Senators returned to their seats I was curious to observe who had won and who lost in the party lottery. The dark brow of the Senator from New Hampshire [Mr. CLARK] was lighted with a gleam of pleasure. His proposed substitute for the third section was the marked feature of the measure. But upon the lofty brow of the Senator from Nevada [Mr. STEWART] there rested a cloud of disappointment and grief. His bantling, which he had named universal amnesty and universal suffrage, which he had so often dressed and undressed in the presence of the Senate, the darling offspring of his brain, was dead; it had died in the caucus; and it was left to the sad

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Senator only to hope that it might not be his last. Upon the serene countenance of the Senator from Maine, the chairman of the fifteen, there rested the composure of the highest satisfaction; a plausible political platform had been devised, and there was yet hope for his party. Mr. President. I recognize the propriety and necessity of conventions and caucuses to regulate all questions of organization and political policy; but I have never felt myself authorized to subordinate my judgment as a representative of the people to the decision of any body of men other than those I represent. To me it seems clear that each Senator owes it to the country to vote upon every important measure and every proposed modification thereof according to the dictates of his own judgment and conscience. The Constitution requires that two thirds of the Senators, each answering for himself, shall agree to a proposed amendment before it can be submitted to the States. In this weighty business now before us what are the facts? The House sent us four propositions to change the Constitution in one bill. Upon discussion it was found that probably no one of the propositions, nor any proposed modification thereof, could receive the required vote. Two thirds of the Senators, belonging to one political party, retired from the Senate to consider and agree upon a bill. Each Sen1866 THE CONGRESSIONAL GLOBE 2939 ator, by going into the secret caucus, agreed and became bound to vote for whatever the majority of the caucus should adopt. A section or an entire bill may be adopted by a bare majority of the caucus, much less than one half the Senate, but the entire two thirds must vote for it in the Senate, not because it is right, but because the majority of the caucus has said so; and thus an amendment of the Constitution may be adopted by the Senate when a majority of the body would vote against it if no party obligation rested upon them. What Senator would dare propose to shut these doors against the people, that we in secret might take steps to change their great charter of liberty? The people would not endure it, but in congregating thousands would burst them open and demand to know all that was said and done upon a matter of such interest to them. The present proposed amendment has been decided upon in a conclave more secret than has ever been known in this country. So carefully has the obligation of secrecy been observed that no outside Senators, not even the sharp-eyed men of the press, have been able to learn one word that was spoken, or one vote given. An Egyptian darkness covers the proceeding. The secret could not be more profound had the conclave assembled down in the deep and dark caverns of the earth. If you change the Constitution have the people not the right to know how and why it is done, what was proposed and said, and how each Senator voted? Is it not their business? Or indeed have they masters, party chieftains, who may say to them "We govern, you obey?" Is it not a fact that shall arrest attention that since this measure was reported from the caucus scarce an explanation has been conceded, and not one amendment offered or voted for by a single Senator who was in the caucus, so exacting and imperative is the obligation, and so literally is party authority obeyed. Sir, if the people can only come to know how this thing has been done. I believe they will refuse their indorsement. I now propose a brief examination of the measure as it came from the caucus. It proposes an additional article of five sections, making that number of amendments or additions to the Constitution. For the first section the virtue is claimed that it defines citizenship of the United States and of the States. I will read that part of the section: All persons born in the United States, and subject to the Jurisdiction thereof, are citizens of the United States and of the State wherein they reside. What citizenship is, what are its rights and duties, its obligations and liabilities, are not defined or attempted to be defined; but these vexed questions are left as unsettled as during all the course of our history, when they have occupied the attention and taxed the learning of the departments of Government. But this is certain, that the section will add many millions to the class of persons who are citizens. We have been justly proud of the rank and title of our citizenship, for we understood it to belong to the inhabitants of the United States who were descended from the great races of people who inhabit the countries of Europe, and such emigrants from those countries as have been admitted under our laws. The rank and title conferred honor at home and secured kindness, respect, and safety everywhere abroad; but if this amendment be adopted we will then carry the title and enjoy its advantages in common with the negroes, the coolies, and the Indians. When the Senator from Wisconsin proposed an amendment excluding the savage Indians of the forest I believe every Senator who had been in the caucus voted against it. No one was authorized to change a word that the caucus had used, but I am not quite sure that the people of Minnesota will regard the obligation to a caucus as a sufficient reason why the Senator from that State [Mr. Ramsay] should seek to confer the rank, privileges, and immunities of citizenship upon the cruel savages who destroyed their peaceful settlements and massacred the people with circumstances of atrocity too horrible to

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relate. How our citizenship will be esteemed at home and abroad should this amendment be adopted we may judge by consulting the sentiments with which we regard Mexican citizenship. We feel that it defines a mixed population, made up of races that ought not to mingle — whites, negroes, and Indians — of whom twenty thousand could not cope with four thousand soldiers of the United States of pure white blood on the field of Buena Vista. It was the work of many generations to place the name and fame of our citizenship so high that it ranked with the proudest titles on earth; but the mad fanaticism and partisan fury of a single year may so degrade it, as there shall be "None so poor to do it reverence." The second section now demands our attention. The intent and effect of that section is to take away representation in Congress in all the States in which the right of voting is not given to the negroes. The purpose is to constrain every State to confer the right of voting upon the negroes; and in case of refusal, the penalty is loss of representation. The section does not rest upon the proposition that those whom the States treat as unfit to vote shall not be represented, for it is so framed as to continue to the northern and eastern States their twenty Representatives that are based upon a non-voting population. It is so framed, also, as to continue to the States of Maryland, Tennessee, West Virginia, and Missouri their full representation, although during the war the military power was so used in those States as to place the political power in the hands of a few, who so exercised it as to exclude the residue of the people from the ballot-box. You say that If the States treat the negroes as unfit to vote, then they shall not be voted for; that no representation shall be allowed for them; then, I ask, if in some of the northern States the foreigner is denied a vote for five years, why shall he be voted for? If in Maryland, West Virginia, Tennessee, and Missouri the majority are treated as unfit to vote, why shall the minority vote for them and be represented for them? Come, now, let candor and truth have full sway, and answer me, is it not because you believe that the few in these States now allowed to vote will send radicals to Congress, and therefore you allow them to send full delegations that it may add to your political party power? And I now submit to your patriotism, to your love of our country, if we have not come upon most dangerous times, when our Constitution is to be torn up and remodeled that a political party may make its power more secure, that it may hold on to the offices, and shape and control sectional policies. Mr. President, I now venture the prediction that this thing cannot succeed; that in this laud of intelligence and love of liberty and right permanent power cannot be built upon inequality, injustice, and wrong. If the principle be right that none but voters ought to be represented, why do you not say so? If you think the negro ought to have the right of voting: if you are in favor of it, and intend it shall be given, why do you not in plain words confer it upon them? It is much fairer than to seek it by indirection, and the people will distinctly understand you when you propose such a change of the Constitution. I am not for it directly, nor will I coerce the States to its allowance. If conferred by the free action of the States, I am content. Within the limits of constitutional right and power I will support all measures necessary and proper for the protection and elevation of the colored race; measures safe and just to both races; but I do not believe that it is for the good of either race that they should be brought into close social and political relations. God has marked the peculiarities of each. He has put them asunder, and it is not the right, much less the duty, of man to join them together. Our institutions rest for their support upon the intelligence and virtue of the people, and who may say that the untaught negroes, so lately manumitted, are qualified to exercise the privileges and discharge the duties of an American citizen? Why then coerce the States to their enfranchisement? Mr. President, it is my duty to call attention to the peculiar and involved form of expression adopted in this section. Instead of excluding from the enumeration the class to whom the elective franchise is denied, which would be easily understood, it is provided that "the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age in such State." Why the abandonment of that which is of plain meaning for that which is involved and difficult? This measure is to go to the people for their judgment, and should have been clothed in plain, honest language. As a party platform, it may serve a purpose that the meaning is covered; but as a part of the people's Constitution its obscurity is a vice. One needs to be a mathematician to be sure that he comprehends the full force of the proposition. But I will again venture the opinion that it means as if it read thus: no State shall be allowed a representation on a colored population unless the right of voting is given to the negroes — presenting to the States the alternative of loss of representation or the enfranchisement of the negroes, and their political equality. In Indiana there are many thousands of the colored race, the number having greatly increased during the past five years because the constitution and laws of the State have not been executed. The policy of the State has been to discourage their immigration, and that policy has been dictated by the desire to protect the white

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labor. The presence of negroes in large numbers tends to degrade and cheapen labor, and the people have been unwilling that the white laborer shall he compelled to compete for employment with the negro. To confer the right of voting is to encourage their immigration into the State and to defeat what experience has shown to be a wise policy. Now, is that State to he denied a representation upon that population because she will not make the negro a voter, while New York continues to hold the four members in Congress to which she is entitled because of a white population to which she denies the right of voting? We could not with patience agree to that. The colored population of New England is so small that she is not perceptibly affected, whether she allows or disallows to them the elective franchise, but, in the agricultural regions of the West and South they are numbered by thousands and millions, and in many localities they are so numerous that to give them the elective franchise is to throw public affairs into their hands. That is impossible, and the adoption of this amendment is to strip agriculture of its proper voice and influence in Congress and in the election of the President and relatively to add to the already swollen power of New England. Were a blow aimed at the representation of Illinois would I not raise my arm to avert it? And why, sir? Because it is her right under the compact of the fathers, and also because the interests of Indiana and Illinois are identical; they are both agricultural States, and the members of Congress who guard and protect the rights and interests of either State cannot neglect those of the other. The same is true of all the agricultural States of the West, and the South. Discussing this question at an earlier day of the session, I had occasion to say: "The States and country that rest upon the Ohio and Mississippi rivers and their tributaries have a common interest. They cannot cease to be agricultural States. The plow must turn wealth up to the men of the West." "Shall we so permanently arrange the representation of the country that agriculture cannot hold up its head? Shall we so permanently adjust representation as that the spindle and the loom shall always be more productive and honorable than the plow and the harrow? Sir. I do not consent to it; and without any reference to sectional feelings and sentiments. I ask for the West simply equality in the legislation of Congress. 2940 THE CONGRESSIONAL GLOBE June 4, "Now, Mr. President, if it is right to change the representation in the House of Representatives, that is, to disturb the foundations of the Government so as to readjust representation, and, as Senators claim, to make it equal and just, why is it not equally right to disturb the representation in the Senate? I know very well the reply will be that the Constitution itself forbids an amendment of that instrument in respect to representation in the Senate; But, sir, the power that made that provision can unmake it; the power to amend the Constitution can reach that very provision and change the representation in the Senate. I know it is said that representation in the Senate is one of the Federal features of the Government; but that argument has lost its force when we are taught in these latter times that State rights' are not to be respected, and that all power is now in the Federal Government. Suppose we undertake to make representation in the Senate equal, how would it stand? The six New England States, with a population of 3,135,253, have twelve Senators in this body, while the six great agricultural States of the West — Indiana, Ohio, Illinois, Iowa, Kentucky, and Missouri — have a population of 8,411,525, with a representation of twelve Senators. With nearly three times the population of New England, we have the same representation. If those States have this advantage in this body, is it fair to try to cutoff the representation of agriculture in the other end of this Capitol? While Indiana has a population of 1,350,428, Rhode Island — a glorious, gallant little State — has a population of 174,620. So far as representation in the Senate is concerned, one man in Rhode Island has a voice and power in the legislation of this country equal to eight men in Indiana. Taking the entire New England States, one man in New England has the voice and power in legislation in the Senate of nearly three men in the West. Is that right, is that just, when you are talking about equality of representation? I do not want to change that feature in our Government. I wish to stand by the State representation as our fathers established it. I do not want to take any of the political power from New England that our fathers agreed she might have. I will stand by their representation as firmly as they will, but I do not like that they shall ask to reduce the representation of the West and Southwest." Mr. President, I am aware of the plausible argument that by the results of the war the slaves have been made free, and as the Constitution now stands will all be counted, and thus by the rebellion the representation of the South, so far as it rests upon the colored population, will be increased two fifths. Perhaps a sufficient answer is found in the fact that the slaves were not made free by the voice of the South, but by the constitutional

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amendment which was demanded by the North; and that the North cannot well complain of a consequence of her own act. But, sir, in any view, is this a sufficient reason why we should not only deny to the southern States the increased representation caused by the freedom of the slaves, but also take from them the three fifths representation which they have always enjoyed under the Constitution? But, sir, if you will amend the Constitution at this most unfortunate time, and while the States most to be affected are unrepresented, I will meet you upon a ground you cannot question, and will propose that the southern States shall have no increase of representation by reason of the freedom of the slaves; and to that end I offer the following amendment, so that the section shall read: Representatives shall be apportioned among the several States which may be included within the Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed, and excluding, also, two fifths of such persons as have been discharged from involuntary service by any proclamation of the President of the United States or by the amendment of the Constitution of the United States since the year 1861, and to whom the elective franchise may be denied. If, now, the objection is made in good faith that the evil you would avoid is the increase of southern representation by the freedom of the slaves, then this amendment is agreeable to you and will be accepted. But it will not be accepted if the purpose really is to reduce the representation of the agricultural sections and thus relatively increase the power of the manufacturing interests, and perpetuate a policy that enriches the capital of one section and bears heavily upon the capital and labor of another. For five years no opportunity has been lost to build up the interests of the eastern States. With that end in view tariff and internal tax laws and drafts have been adjusted, and banking capital distributed; so that now almost every investment of capital in that section yields from fifteen to one hundred per cent profit, while in Indiana and Illinois the bushel of corn that ought to be worth to the farmer fifty cents, being manufactured into whisky is taxed eight dollars; the bushel yielding four gallons. Mr. President, I rejoice in the prosperity of any section when it is the result of legitimate trade, under equal laws, for then it is the prosperity of the whole country; but I call upon western Senators to hesitate before they surrender a representation that is a reliable support to our great interest, agriculture. The third section provides that no person shall ever hold any office under the United States, or under any State, who, having at any time taken the oath prescribed by the Constitution as an officer of the United States or of any State, shall engage in rebellion or give aid and comfort to the public enemies. The proposition to exempt from the operations of the section those who against their will were compelled to participate in the rebellion, was voted down; and the section now stands excluding from all offices every person of the described class who either voluntarily or involuntarily became connected with the rebellion; and that, too, notwithstanding the party may be under the shield of the President's pardon. This harsh and sweeping measure will include many excellent men whose services now in the work of reconciliation would be of the greatest value to the country — men who displayed heroic courage in standing out against the secession movement, but who afterward yielded obedience to and served the established government de facto. This measure is in the spirit that pursued the supporters of Cromwell and the Parliament after the Restoration. It is in the spirit of vengeance after men are beaten and have surrendered, and cannot bring a blessing to our country. Senators say that the measure is not penal in its character. Why not? When pardoned are not these men eligible to State and Federal offices? And do you not propose to strip them of their eligibility because of their crime? I suppose the Senator from Illinois [Mr. TRUMBULL] by referring to the criminal code of his own State will find it prescribed as a punishment for crime that parties shall be “disfranchised and rendered incapable of holding any office of trust or profit.” That is as much a punishment as the fine or the imprisonment, and is found in the criminal codes of many of the States. It is a penalty when the court and jury strip the accused of his right to hold office. What is it, then, when done by Congress? The Senator from West Virginia [Mr. WILLEY] says that it is a measure of safety for the future — a precaution. So the judge tells the convicted criminal the law esteems him unfit to hold office, and as a precaution the right is taken from him. As a penalty for crime this measure is ex post facto; and if it were a measure of ordinary legislation would therefore be unconstitutional. Mr. President, do you think there will enough good come of this to justify us in departing from the principle which is found in the Constitution of the United States and of every State in the Union, that a man shall be punished only according to the law in force at the time the act is done? The fourth section provides that the public debt shall remain inviolate. Who has asked us to change the Constitution for the benefit of the bond-holders? Are they so much more meritorious than all other classes that they must be specially provided for in the Constitution? Or, indeed, do we distrust ourselves, and fear that we will all become repudiators? A provision like this, I should think, would excite distrust, and cast a shade on public

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credit. But perhaps the real purpose is so to hedge in the bond-holders by constitutional provision as that they never may be taxed; that Congress can never assent to their taxation, and so that three billions of capital may bear no portion of the public burdens. Such would be the effect of this amendment. Who has attacked public credit, or questions the obligation to pay the public debt? Are the bond-holders not receiving their interest, even in advance, and in gold? Why then do they ask this extraordinary guarantee? They trusted the good faith of the people, and there is no breach of that faith. When things entirely unusual are asked, it is well for the people to inquire, why it is, what is the purpose, and how far will it carry us? The provision about bounties and pensions is but a blind. The man who wrote the section knew that pensions and bounties used no guarautee; that their payment is secured not only by law, but there is also the pledge of the honor and the hearts of the people. Mr. President, I stand by the public credit, which is public honor and individual safety. But, sir, how shall we uphold our credit and secure our creditors? By just laws, by equal taxation, by distributing equally over the entire nation the burdens of Government, that they may rest upon the shoulders of all sections and interests. Then there will he no discontent, no grumbling, but a satisfied people, in their strength, will carry every obligation of the Government until discharged, and public credit will then be as firm as the solid foundations of this Capitol. The fifth section declares the debts contracted in aid of the rebellion illegal, and prohibits their payment. Mr. President, who is so stupid as to have supposed these debts legal, or that they had any valid existence for one hour after the de facto government of the confederate States ceased to exist? Who is so silly as to fear their payment? It was amusing to observe that the Senator from Michigan, [Mr. HOWARD] in making an argument for this section, showed that it was wholly unnecessary, for he read one of the confederate notes, and upon its face it appeared that it was not to become due and payable until six months after the independence of the confederate States should be recognized by the United States. Will that note now in the Senator's pocket ever become due? The Senator laughed at the suggestion. The debtor has ceased to exist; the debt, according to its own provisions, can never become due, and each of the southern States has by constitutional provision repudiated it and prohibited the payment of any portion thereof. If there ever was a defunct and buried debt, without legal or moral force, the recognition and payment of which is in every way impossible, it is the debt, the continued existence of which it is now proposed to recognize by a prohibition of payment in the Constitution. The least that may be said of this section is that it would be harmless, but I would regret to see the face of the Constitution marred by a provision so unnecessary and trifling. The sixth and last section provides that Congress shall have power to enforce, by appropriate legislation, the provisions of the article. When these words were used in the amendment abolishing slavery they were thought to be harmless, but during this session there has been claimed for them such force and scope of meaning as that Congress might invade the jurisdiction of the States, rob them of their reserved rights, and crown the Federal Government with absolute and despotic power. As construed this provision is most dangerous. Without it the Constitution possesses the vitality and vigor for its own enforcement through the appropriate departments. Mr. President, I have now briefly examined the provisions of this article, and cannot resist the conviction that some of them are useless, while others are vicious and dangerous. Nor can I resist the conviction that this measure is pressed, not because of an exigency in our affairs, but to carry out a party programme. The President has his policy. You oppose him. You charge him with usurpation, while at the same time you are straining every brace and timber in the Constitution to secure to yourselves absolute control; indeed, you reach out beyond the Constitution, and by amendment — a proceeding to be resorted to only upon rare and solemn occasions — you grasp after and, with the avidity of hunger, clutch power. Why this reaching after power on your part? Is it not enough that for five years you have held all the offices of the country, and through the favoritism of the Departments 1866 THE CONGRESSIONAL GLOBE 2941 your partisans and followers have grown rich and powerful? Or is it so sweet to govern men that the possession of power is indispensable to your happiness? Upon what fact may you charge the President with usurpation? When he came into office he found eleven great States and eight million people under his absolute sway and government. His authority was as absolute and supreme as is that of the Czar of Russia over his extended dominions. The persons and property of the people were under his control. In his hands there seemed to be the issues of life and death. Did he like you clutch this power and seek to extend it? Did he say it is sweet to govern. No, Senators; laying down absolute power, he said to the people, "Place your States again in practical relations with the United States, and govern yourselves; I will be the President, exercising only those powers with which the Constitution has clothed me." I submit to the candid judgment of men if this was not an exhibition of sublime

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and heroic devotion to principle and renunciation of power? And when you handed him the Freedmen's Bureau bill, and authorized him to appoint an army of office-holders to fill the whole country with his partisans, when you offered to give him a patronage such as no man had ever before held, he refused it all; but in accordance with his convictions of duty vetoed the bill. Twice he refused the crown of power, not, like Caesar, pushing it gently from him with the back of his hand, but firmly and in the face of most formidable opposition. The position of the President and those who support his Administration upon the great question now agitating the country is so well and accurately expressed by an eloquent friend, that I will borrow his words: "1. That no State has the legal right to sever its connection with the Federal Government. "2. Failing in such an attempt they remain in their ancient places, fixed, immovable, and shorn of none of their attributes as States. "3. The right to immediate representation in Congress as living, lawful, and legitimate members of the Government. "4. That the American Union is restored, and stands unbroken, without flaw or blemish, and with domestic tranquility in all her borders in the presence of the nations of the earth." Mr. President, upon this great question of a restored Union we go to the country. The Army has done all its work, there is nothing more for it to do, and the sons of the Republic have returned to their homes. All opposition to the authority of the Government of the United States has ceased, and peace reigns throughout our borders. Shall the Union in all respects stand restored, and we be again a united and powerful people? Shall trade and commerce return again to their ancient channels, and prosperity attend all the pursuits of the people? You may throw yourselves across the pathway of the people, and by shouting copperhead and sympathizer hope to frighten the timid, but you will not be able to check or turn them in their onward progress, because they now follow a banner upon which is written in letters of light "reconciliation and Union." The PRESIDING OFFICER, (Mr. CLARK in the chair.) The question is on the amendment of the Senator from Michigan to insert an additional section as section four. The amendment was agreed to. The next amendment of Mr. Howard was in section [four] five, line forty-six, to strike out the word "already" before the word "incurred;" in line forty-seven to strike out the words "or which may hereafter be incurred;" in line forty-eight to strike out the words "of war" and insert the word "rebellion;" in line forty-nine to strike out the words "loss of involuntary service or labor" and to insert "the loss or emancipation of any slave; but all such debts, obligations, and claims shall be forever held illegal and void;" so that the section will read: Sec. [4] 5. Neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for compensation for the lose or emancipation of any slave; but all such debts, obligations, and claims shall be forever held illegal and void. Mr. FESSENDEN. I did not notice that the fourth section was agreed to. Was it agreed to? Mr. HOWARD. Yes, sir. Mr. FESSENDEN. Then I shall move a reconsideration, as I propose to offer an amendment to it. Mr. HOWARD. I move to amend the amendment to the [fourth] fifth section, in line forty nine, by striking out the words "for compensation for" and inserting the words "on account of," so as to prevent the repetition of the word "for." Mr. HARRIS. I do not see that that improves it at all. I think it is quite well enough as it is. I would not change it. Mr. HOWARD. The object is merely to prevent the repetition of the word "for." It now reads, "any claim for compensation for the loss," &c. Mr. FESSENDEN. It will make better phraseology. Mr. HOWARD. I propose simply to make it read, "or any claim on account of the loss or emancipation of any slave." It makes it more harmonious. The amendment to the amendment was agreed to. The amendment, as amended, was adopted. Mr. HOWARD. There is one other amendment that escaped my attention. In line thirty the word "that," at the beginning of section three, should be stricken out. It is entirely superfluous. The section will then read: No person shall be a Senator or Representative in Congress, or elector, &c. The PRESIDING OFFICER. The amendment will be made if there be no objection, being a verbal amendment.

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Mr. FESSENDEN. There is a little obscurity, or, at any rate, the expression in section four might be construed to go further than was intended, and I have rather come to the conclusion that it was best to put sections four and five in one single section; and I ask the Chair, as section four has been adopted and also the amendments to section five, if it will be at any time in order to strike out both and insert a substitute for the two sections. The PRESIDING OFFICER, (Mr. CLARK.) It is in order now, in the opinion of the Chair, to strike out those sections and insert a substitute, and it will also be in order when the joint resolution is reported to the Senate. Mr. FESSENDEN. But section four has been agreed to. The PRESIDING OFFICER. It has been agreed to, but it will be in order to strike that out with something else, and insert a substitute. Mr. FESSENDEN. These amendments will come up in the Senate in their regular order, as I understand. The PRESIDING OFFICER. They will. Mr. FESSENDEN. I will omit offering my amendment, then, until the resolution is reported to the Senate. The PRESIDING OFFICER. All the amendments proposed by the Senator from Michigan have now been disposed of. Mr. VAN WINKLE. I offer the following amendment to come in as a new section: Sec.—. Every person not mentioned or described in section three of this article who shall have engaged in insurrection or rebellion against the United States and against whom no prosecution for treason has been instituted before the expiration of — years from the termination or suppression of such insurrection or rebellion, who shall thereafter before a court of record make oath to support the Constitution of the United States, shall thereupon be forever acquitted and discharged of and from all pains, penalties, liabilities,disabilities, and disqualifications incurred under the Constitution or laws of the United States, or of any State, by participation in such insurrection or rebellion, and if previously a citizen of the United States shall be thereby restored to all rights, privileges, and immunities of citizenship. But nothing in this section contained shall prevent the Congress passing a general or special act of amnesty as to any or all persons included in its provisions before the expiration of the said — years. I do not propose, Mr. President, to detain the Senate for a moment by advocating the provisions of this amendment. If they do not commend themselves to Senators I am sure that nothing I could say would help the case. The object is easily perceived. It is, if we can, to make a finality of this matter; that while we have excluded certain persons from representation and from participation in the Government, the large class of persons who will still remain shall at some time — and I have left the number of years blank — be released from the pains and penalties they have incurred, or are supposed to have incurred, for it is exceedingly doubtful, I presume, what disabilities the mere fact of having engaged in the rebellion imposed upon them without a trial and conviction of treason. I have framed the amendment with a view, of course, as it is proposed to go into the Constitution, of applying to the future as well as to the present case; and I think if our attention could be drawn to this point, and all the amendments that are proposed here were considered in that light, we should be more able to separate ourselves from the feelings and prejudices of the moment and to act understandingly upon the subject. I propose by this amendment that all those persons who are not embraced in the third section, which section, I take it, will include the most of those who were the instigators and fomenters of the rebellion, and all against whom no prosecution for treason shall be commenced within a certain number of years, shall upon the expiration of that time, by taking an oath thereafter to support the Constitution, in the usual form, be exonerated from all pains and penalties in consequence of their action. I need not say that there is something due to these people, even when their delinquency is fully admitted. They are now in a situation where they know not what will be their future, and I think it is due to the business of the country and to the more early resumption of the former friendly relations that existed between us and the people of those States, that something of this nature should at this time and in this connection be ingrafted upon the Constitution, or should accompany the section which excludes certain descriptions of persons. I trust, sir, at any rate, that this amendment, or the spirit of it — for I am not anxious about the words — may receive such consideration from the Senators in the majority as will induce them to give it a fair hearing. It is offered in good faith. I have not shown it or named it to a single person. If there is any responsibility attending it, it is wholly my own. I am certain, from my own knowledge and from the interviews I have had with many of the southern people since I have been here, and from my knowledge and interviews with such persons in my own State, that it is more important to them that some time should be fixed when their disabilities shall terminate than that the time should be either early or late. I have left in blank the time to be fixed. If it was an open question, if it

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related only to the future, I should be inclined to fix the time at not exceeding three years; but taking into consideration the circumstances under which we are placed it may be fixed at a longer period if such be the judgment of the Senate. I do not know, at this moment, at what time this rebellion terminated or was suppressed in a legal point of view. I know that in case of foreign war peace is generally made by treaty, and that treaty is not in force until it is proclaimed to be in force by the President, and by that treaty notice is generally given where and when hostilities shall cease; that is to say, in reference to vessels that are in foreign seas and in different parts of the world. There has been, I believe, a proclamation by the President, in which he stated that the rebellion was at an end, but the State of Texas was omitted from that category. Whether that would be the proper time to fix as the time when the war or rebellion terminated or was suppressed I cannot say, but I think that this is an endeavor, 2942 THE CONGRESSIONAL GLOBE June 4, at least, to afford a means by which the constitutional amendments now pending may be made a finality. You exclude by a section already adopted certain persons from being members of this body and from holding other offices. In the next place it is left open to you by the amendment I have proposed until the expiration of whatever number of years may be fixed, to institute proceedings against any others whom you think ought to be proceeded against. Having made the election, then, to exclude one class entirely and to prosecute another class, the residue are those whom I propose to declare freed from the pains and penalties and disabilities and disqualifications they have incurred. It is to meet that case, to make, if I can, a finality of this matter, that I have proposed the amendment, and my own judgment is that the requisite number of States are more likely to adopt the amendment in gross with some provision of this character, at least, accompanying it; that is to say, that the mass of the people South, including a great many who were misled by those upon whom they usually depended for information as to the proper conduct they should pursue, and who were forced into the service under other circumstances, wherein they cannot be said to have been morally blamable, should be relieved and released at once. At present they do not know what is to be their fate, and that uncertainty is preventing things settling down in quiet in the southern States. I ask Senators again to give this proposition a fair consideration before they reject it. Mr. HOWARD. I hope the amendment will not be adopted. I do not see any propriety in incorporating into the Constitution any provision relating to amnesty or pardon — a subject which is already provided for by the act of 1862 and by the Constitution itself. There is full power already in the hands of the President of the United States under that act of Congress, to pardon every rebel who has participated in the civil war, conditionally or unconditionally, as he may see fit. He has, besides that special clause in the act of 1862, the general pardoning power given by the Constitution of the United States, which he can exercise even before conviction if he sees fit to do so. I therefore look upon this amendment as entirely unnecessary and not productive of any beneficial result. Besides, it looks to me like a deformity incorporated in the Constitution of the United States. We are now settling the fundamental principles upon which our Government is to be conducted hereafter, and I think we should omit any reference to that subject. Mr. DAVIS. I ask for the yeas and nays on this amendment. The yeas and nays were ordered. Mr. SHERMAN. In addition to what the Senator from Michigan has said, it seems to me that this is a subject for legislation, not for constitutional amendment. We have already provided that the President of the United States may do precisely what would be done by this proposed amendment; and if more liberal legislation is required hereafter, and the President fails to extend amnesty so broadly as it should be, Congress has always power to relieve, by a general act or special act, from the penalties of crime, and may provide for a general amnesty by law. I therefore submit to the Senator from West Virginia whether, although his proposition seems to be a reasonable and proper one, it is worth while to put it in a constitutional amendment, when it is of so temporary a character, and the matter may be regulated by law. Mr. VAN WINKLE. The amendment, it will be seen, removes disqualifications and disabilities. and from what I have heard and read, nobody believes that the amnesty granted by the President will have that effect. At any rate, there is a difference of opinion; it is a moot point as to what effect that amnesty will have; and, again, it is a moot point and has been debated here upon the floor of the Senate, I think, within a few weeks, as to the right of the President to pardon before conviction. These points have both been denied, and denied by those to whose opinions some weight is attached. My reason, therefore, for proposing that this proposition should accompany these amendments to the Constitution is that everybody may know, as it were, in advance, what is likely to be his fate. The question being taken by yeas and nays, resulted — yeas 8, nays 26; as follows:

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YEAS—Messrs. Cowan, Davis, Doolittle, Guthrie, Hendricks, Riddle, Van Winkle, and Willey—8. NAYS—Messrs. Chandler, Clark, Conness, Cragin, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Morgan, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Wade, Williams, Wilson, and Yates—26. ABSENT—Messrs. Anthony, Brown, Buckalew, Creswell, Dixon, Johnson, Lane of Kansas, McDougall, Morrill, Nesmith, Norton, Saulsbury, Sprague, Trumbull, and Wright—15. So the amendment was rejected. Mr. HENDRICKS. I now offer the amendment which I before suggested to the second section. It is to strike out all after the word "taxed," in that section, in these words: But whenever in any State the elective franchise shall be denied to any portion of its male inhabitants being citizens of the United States not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age in such State. And in lieu thereof to insert these words: And excluding also two fifths of such persons as have been discharged from involuntary servitude by any proclamation of the President of the United States or by the amendment to the Constitution of the United States since the year 1861, and to whom the elective franchise may be denied. I will make a very brief explanation of this amendment. The effect of it will be to leave the representation of the southern States just where it was before the war. It is objected and urged as a reason for a constitutional amendment that the slaves, having been made free, are now all counted in the basis of representation, and that the effect of that is to increase the southern representation. To avoid this objection this amendment is proposed, so that the representation from the southern States shall be upon precisely the same basis that it was before the war. I desire to explain one portion of the amendment. It speaks of persons made free by any proclamation of the President or by the amendment of the Constitution. I do not myself believe that the proclamation of the President had the effect in law of emancipating the slaves; I believe that that work was done by the constitutional amendment; but as other Senators hold that the proclamation had the effect to make the slaves free, out of deference to their views I have used that expression. Mr. DOOLITTLE. If I correctly understand the effect of the amendment of the Senator from Indiana, it is that until the elective franchise is extended to the colored men of the South they are to be counted in the basis of representation just as they have heretofore been counted; that is, three fifths of them are to be counted, and no more. I am inclined to vote for this amendment, because I believe it would be more likely to be adopted both by the States South and by the States North. The effect of it is to count the colored population of the South as they have heretofore been counted until they shall be enfranchised; and of course when enfranchised they will all be counted. The southern States, in my judgment, would vote for that proposition sooner than for the pending proposition as reported by the committee, because it does not decrease their representation. The northern States would vote for it because it secures them in their proportion of political power against any increase on the part of the southern States by virtue of the emancipation of the slaves at the South, while it tends in the same direction with the amendment reported by the committee as it now stands. That amendment as it now stands excludes five fifths until they are enfranchised. This amendment excludes two fifths until they are enfranchised. For my part, one of the greatest anxieties I have about constitutional amendments if they are to be submitted, is, that they be submitted in such a shape that the States will ratify them, so as to close up this matter and have an end of it. For this reason I am inclined to vote for the amendment. The amendment was rejected. Mr. DOOLITTLE. I desire now to move some amendments to this second section. I propose to offer as a substitute for it the following: After the census to be taken in the year 1870, and each succeeding census, Representatives shall be apportioned among the several States which may be included within this Union according to the number in each State of male electors over twenty-one years of age qualified by the laws thereof to choose members of the most numerous branch of its Legislature; and direct taxes shall be apportioned among the several States according to the value of the real and personal taxable property situated in each State, not belonging to the State or to the United States. I shall not go into any lengthy argument on the subject of this amendment, but simply state in the briefest words possible the grounds upon which I offer it. In the first place, I am in favor of it upon the ground of

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principle. I believe that in the House of Representatives the voting population of the country should be represented; that a voter in Wisconsin should have precisely the same voice in the House of Representatives as a voter in Massachusetts or a voter in Kentucky or a voter in South Carolina; that if twenty thousand voters in Wisconsin are permitted to speak one voice or cast one vote in the House of Representatives, twenty thousand voters in South Carolina should not be permitted to cast any more than one voice or one vote. I believe that a constitutional amendment based upon this principle, the principle of the representation of voters, is more likely to be acceptable to the States than the proposition which is reported by the committee and pending before the Senate. You may say that the end of it may be very much the same, that if the States at the South do not choose to make voters of their colored population that population will not be represented in the House of Representatives, and you may say that is the effect under the pending amendment; but the principle upon which it is based is very different, and when you are asked to vote for a measure upon one principle it is a very different thing from what it is when you are asked to vote for what may perhaps be the same in effect upon another principle. I am for this, because it is no new conviction with me. It has been the conviction upon which I have acted during the whole of this struggle. It is the ground upon which my political associates in Wisconsin, and I believe the men of all parties in the State of Wisconsin, stand fully committed, in favor of the proposition to let representation be based upon the voters of the several States. If you say to the States of the South, "You must be deprived of one half of your representation or let your negroes vote," that is one thing; but if you say to the States of the South, "As a principle, it is but just that the men who vote shall be represented in the House of Representatives," they may yield to your principle when they may not be prepared to yield to it in the form in which you present it. Mr. President, I have looked a little into this subject to see what the effect will be. A friend of mine has prepared a table showing how this proposition will operate in the several States. This table shows the number of Representatives to which the States are now entitled, the number to which each would be entitled on the voting basis, and the number to which they will be entitled by the reconstruction amendment as proposed by the committee. The estimate is made upon the figures of 1860. The State of Maine has five Representatives under the present apportionment. She had 100,718 voters in 1860 and upon the voting basis which requires 20,400 voters to be entitled to one Representative in the other House, she would have five Representatives. A Senator asks me 1866 THE CONGRESSIONAL GLOBE 2943 how the voters can be ascertained. Their number can be ascertained when you take the census, like any other fact. Mr. GRIMES. The amendment of the Senator from Wisconsin provides for the voting basis, not the basis of citizenship. In Wisconsin a man can vote who has been on this continent only six months. Does the Senator intend to include such persons as those in his basis in the State of Wisconsin? Mr. DOOLITTLE. According to my amendment they would be embraced. Mr. GRIMES. They would be embraced in Wisconsin; but would they be embraced in Massachusetts? Mr. D00 LITTLE. It depends on what Massachusetts decides on that question. Mr. GRIMES. On the State law. Mr. DOOLITTLE. Certainly. Mr. GRIMES. Then the purpose and object, or at any rate the legitimate result of this amendment, would be to degrade the elective franchise so as to allow every man to vote on the same platform, on the same basis. Mr. DOOLITTLE. Not at all. Your amendment proposes to allow the States to say who shall vote. Upon that subject I propose to take the sense of the Senate in both forms, both on the question of "male electors" and "male citizens of the United States." I wish certainly to accommodate myself to the judgment of the honorable Senator from Iowa, for I desire to secure his support, if it is possible, though I have some doubts about that. Now, Mr. President, to come back to this table, the State of Maine had 100,718 voters in 1860, and she has five Representatives on the basis of population. On the voting basis she would still be entitled to five Representatives; but upon the reconstruction basis as reported by the committee Maine would gain one Representative and have six. So under this reconstruction amendment Maine gains one. How is it with New Hampshire? She had in 1860 65,923 voters, and she has three Representatives on the present basis. New Hampshire would also have three Representatives upon the basis of the reconstruction amendment as reported by the committee. So New Hampshire is not affected, whichever way the thing stands, if it stands on the Constitution as it is, if it stands on the Constitution as the committee propose to amend it, or if it stands on the Constitution as it is proposed to be amended by the amendment which I have just offered. We now come to Vermont. Vermont upon the present apportionment has three Representatives. In 1860 she

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cast 44,644 votes. Vermont would have but two Representatives upon the voting basis, because the fraction would not be large enough to give her three, but under this reconstruction amendment Vermont would still retain three Representatives. Next we come to Massachusetts. Massachusetts upon the present apportionment has ten Representatives. She had in 1860 169,175 voters. Upon the voting basis Massachusetts would have eight Representatives, so that my amendment would reduce her representation by two; but upon the reconstruction amendment as offered by the committee Massachusetts would have eleven, gaining one. Thus we see that Maine would gain one and Massachusetts would gain one, while Vermont and New Hampshire remain the same under the committee's amendment. Connecticut has four Representatives upon the present apportionment. She had 79,246 voters in 1860, so that she would have four Representatives upon the voting basis. Connecticut would also have four Representatives under the proposition of the committee. So Connecticut is not affected; she stands indifferent so far as the number of her representation is concerned. Rhode Island has two Representatives under the present apportionment. In 1860 she had 19,951 voters, so that the voting basis would give her but one Representative, whereas under the reconstruction amendment as reported by the committee she would have two. Thus it appears that upon the voting basis New England would lose four Representatives, whereas under the reconstruction amendment as proposed by the committee she would gain two Representatives. How does it stand with New York? New York now has thirty-one Representatives. She had in 1860 675,176 voters. Upon the voting basis New York would gain three and her representation world be thirty-four. So upon the reconstruction basis as reported by the committee New York would also gain three. New Jersey has five Representatives under the present apportionment. Upon the voting basis, as New Jersey had 121,125 votes in 1860, she would have six, or a gain of one; and according to the reconstruction amendment as proposed by the committee, New Jersey would gain one. How is it with Pennsylvania? Pennsylvania has now twenty-four Representatives. The number of her voters in 1860 was 476,442. Upon the voting basis, Pennsylvania would have the same number, twenty-four Representatives, her fraction being very large. Upon the reconstruction amendment as reported by the committee she would gain one. Mr. COWAN. Oh, no. We have one hundred thousand negroes in Pennsylvania, and under that proposition we should lose one. Mr. DOOL1TTLE. Perhaps that may be so. Ohio has under the present apportionment nineteen Representatives. She had in 1860 412,441 voters. Upon the voting basis Ohio would have twenty-two Representatives, a gain of three, whereas, under the reconstruction amendment, she would have twenty, a gain of only one. Indiana, under the present apportionment, has eleven Representatives. She has 272,113 voters. Upon the voting basis Indiana would have thirteen Representatives, a gain of two, whereas upon the proposed amendment of the committee, Indiana would have twelve Representatives, a gain of one. Illinois has fourteen Representatives under the present apportionment, with 359,693 voters. Illinois would have seventeen Representatives upon the voting basis, a gain of three, whereas, according to the proposition of the committee, Illinois would have but fifteen, a gain of only one. Michigan has under the present apportionment six Representatives, with 153,537 voters. Upon the voting basis Michigan would have eight Representatives, a gain of two, while upon the proposition of the committee she would have seven, a gain of one. Wisconsin has six Representatives, with 152,180 voters. Wisconsin, like Michigan, would have eight Representatives on the voting basis, it gain of two, whereas, upon the proposition of the committee, she would have but seven, a gain of one. Iowa now has six Representatives, but she has one of her Representatives upon a fraction. She had but 128, 331 voters, so that according to this table her representation would remain the same on the voting basis. Mr. KIRKWOOD. How does the Senator arrive at the number of voters in 1860? Mr. DOOLITTLE. By the number of votes cast in the presidential election of 1860. I am speaking on that basis. Perhaps there are still more voters that did not vote, and you might be entitled to more if you counted them all. It would make it still better for you. Mr. CRAGIN. With the permission of the Senator from Wisconsin I desire to ask him a question. Mr. DOOLITTLE. Certainly. Mr. Cl1AGIN. Suppose there are more voters, would it not change his whole calculation? Mr. DOOLITTLE. Undoubtedly. Mr. CRAGIN. Take, for instance, the State of Vermont, adjoining New Hampshire. The population of the two States is about the same, but in New Hampshire the contests are always close, and we bring out almost the last vote. Mr. DOOLITTLE. You do not lend them any of your voters. [Laughter.]

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Mr. CRAGIN. In Vermont, according to the Senator's table, the number actually voting was 40,000 and over, and the Senator reduces her representation from three to two; but if the actual number of votes were counted Vermont would leave the same as New Hampshire. It spoils his whole calculation. Mr. DOOLITTLE. That maybe so, but my amendment provides for the representation being eased on the voters as returned by the census, so that there will be no mistake about that. If Vermont has the voters she will not lose representation. Every voter in Vermont has just as much right to be represented as a voter in Wisconsin. The calculation on which I am relying is based upon the actual vote cast in 1860. Mr. FESSINDEN. It is based also, I suppose, on the idea that the southern States will not enlarge their voters but that they will remain as they are now. Mr. DOOLITTLE. I am taking the actual votes cast in 1860, and supposing that the laws remain the same on that subject. The State of Minnesota is now entitled to two Representatives. She cast 34,790 votes in 1860. Upon the voting basis she would be entitled to two Representatives, the same that she has now, for she has one upon a large fraction at present. California has now three Representatives. She cast in 1860 118,840 votes, which would entitle her at the rate of twenty thousand voters to a Representative, to six Representatives, giving her an increase in her representation of three members. Oregon has one Representative and will have but one, because the voters in Oregon in 1860 amounted to 14,410 who cast their votes in the election that year, and the population of Oregon probably is not such as to entitle her to more than one Representative, and may not be for some time to come. So also of Nevada. Now, Mr. President, if we look to the late slave States, the State of Delaware under the present apportionment has one Representative. She had 10,039 voters in 1860, and upon the voting basis or any other basis the State of Delaware will have but one Representative. Maryland has under the present apportionment five Representatives. Maryland had 92,502 voters in 1860, and if you give to her the benefit of a large fraction, a fraction of twelve thousand out of twenty thousand which entitles to a vote, Maryland would still have, on the voting basis, five Representatives and under this reconstruction amendment she would have the same. West Virginia has three Representatives under the present apportionment. Her voters in 1860 are computed to be about 50,000 — the accuracy of that calculation I cannot vouch for — which would give her the same number of Representatives which she now has. Virginia, the remaining part of Virginia, is entitled to eight Representatives under the present apportionment. On the voting basis of 117,223, she would be entitled to but six Representatives, which would be a reduction upon the State of Virginia of two, and the same reduction follows under the apportionment which is proposed by the committee. Kentucky has now nine Representatives under the present apportionment. Kentucky had 145,258 voters in 1860, which would make her entitled to seven Representatives on the voting basis, and a large fraction, almost entitled to eight; but upon the voting basis Kentucky would lose two, and upon the proposition of the committee Kentucky will lose two of her Representatives. The effect upon her, therefore, is the same. Missouri is entitled to nine Representatives under the present apportionment. Missouri had 165,518 voters in 1860, which would entitle her to eight Representatives, which would be a loss of one when she is reduced to the voting basis. North Carolina is entitled to seven Representatives under the present apportionment. Upon the voting basis; as she had 96,230 voters in 1860, she would be entitled to but five, receiving one upon the large fraction of 16,000. South Carolina, under the present apportionment. is entitled to four Representatives. I have here an estimate as to the amount of votes that were cast in the State of South Carolina, as her Legislature elects the presidential electors, and there2944 THE CONGRESSIONAL GLOBE June 4, fore no accurate computation could he made as to the voters of South Carolina; but her voters were estimated at about 50,000. It is calculated that upon the voting basis, therefore, South Carolina would have three Representatives, and she will have the same under the proposition of the committee. Georgia is entitled to seven Representatives under the present apportionment. In 1860 Georgia had 106,365 voters, which would entitle her upon the voting basis to six Representatives. Florida had but 14,347 voters in 1860. She is entitled to but one Representative under the present apportionment, and cannot, under any circumstances, at present at least, be entitled to more than one. Alabama has six Representatives under the present apportionment. She had 90,357 voters in 1860, which, upon the fraction of ten thousand and upwards, would entitle her to five Representatives upon the voting basis, and she would be entitled to the same number under the reconstruction amendment proposed by the committee. Mississippi is entitled to five Representatives under the present apportionment. She cast 69,120 votes in 1860, which would entitle her to four Representatives upon the voting basis, which would be a loss of one. Louisiana is entitled to five Representatives under the present apportionment. She had 50,510 votes

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in 1860, which would entitle her to but three Representatives on the voting basis. Of course this is based upon the assumption that the colored people of the South are not yet permitted to cast votes. When they become enfranchised these States will be entitled to increased representation. Texas is entitled to four Representatives under the present apportionment. She cast 60,986 votes in 1860, which would entitle her, on the voting basis, to three Representatives, or a loss of one. Arkansas is entitled to three Representatives under the present apportionment. She cast 54,053 votes in 1860, which would entitle her to three Representatives upon the voting basis. which is the same as upon this report of the committee. Tennessee is entitled to eight Representatives under the present apportionment. She had 145,333 votes in 1860, which would entitle her to seven Representatives, and a large fraction, but she would lose one if placed upon the voting basis, and the same upon the report of the committee. Mr. President, if we recapitulate the whole according to the computation of this table, under the present apportionment the North or the old free States have one hundred and fifty-seven Representatives, the South or the late slave States eighty-five, making a majority in favor of the North or the old free States of seventy-two in the House of Representatives. Upon the voting basis, the North or the old free States will have one hundred and seventy-two Representatives, while the South or the old slave States will have but seventy, and thus give to the old free States a majority in the Electoral College of one hundred and two. Thus it will be seen that this proposition to base representation upon the voting basis is three in favor of the old free States; and while New England, which, with her comparatively small population, has twelve Senators in this body, loses but four, and the great agricultural States of the Northwest, one of which I represent, will gain twelve in the House of Representatives, while such are the results, it seems to me it does not militate at all against the proposition which I have introduced. California, which now has three, would be entitled to six Representatives. I desire not to dwell at any great length on this subject. Mr. WILLIAMS. Before the Senator leaves that part of his argument, I should like to ask him a question with his permission. Representation is now based upon population, and it is estimated, and I suppose there is not much doubt about the correctness of the estimate, that there are in the State of New York four hundred thousand foreigners not naturalized. Those foreigners give to the State of New York at this time three Representatives in the House of Representatives. The Senator proposes, by adopting voters as the basis of representation, to strike out those four hundred thousand foreigners, and at the same time he says New York will gain three in her representation. I should like to have an explanation of that difference. Mr. DOOLITTLE. Mr. President, there were cast in 1860 4,731,193 votes, which, according to that estimate, would give 20,400 voters to each Representative elected. The State of New York cast in 1860, 675,156 votes, which, divided by 24,400, gives New York thirty-four Representatives. I think these tables will be found, upon calculation to be sufficiently accurate to illustrate all that is necessary to be shown upon this subject. The principle that voters should have an equal voice in the choice of Representatives in the House of Representatives, the popular branch of the Government, is a principle upon which we can stand and contend. We can ask men, even when it disfranchises the States of the South, to vote for that, when you cannot so well go to them and say; "Gentlemen, you must consent to lose one third, one fourth, or one half of your representation unless you will allow the colored population to vote." That is a different question. You may say the effect produced is the same; but when you are arguing for a principle, that is to say, that the voice of the voter is what is to he heard in the House of Representatives, they will yield to the principle and accept it and vote for it when they would not vote for it presented in its present form. I ask for the yeas and nays upon this amendment. The yeas and nays were ordered. Mr. EDMUNDS. I am satisfied that my friend from Wisconsin is entirely in error in respect to the number of voters in the State of Vermont. He bases himself merely upon the election returns of the election of 1860, if I understand him. The population of Vermont is more than 315,000; and if my recollection is not very much out of joint, in times gone by, when contests were approximately close there, we cast more than 60,000 votes; and I have no doubt today that the number of male citizens of the State of Vermont, of that population of 315,000 and upward, is more than 60,000; so that in the particular instance that he recites as to that State there is an undoubted error in his figures of more than 16,000 voters; and if, as it often happens in States where the contest is not close, similar differences exist, the value of his tables is of course totally destroyed. Mathematics is one of the sciences where, if you leave out one link or make one error, the result flows through the whole problem, and therefore it will undoubtedly turn out that there is no reliance whatever to be placed upon the figures which my friend from Wisconsin has so ingeniously framed.

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But, Mr. President, the question is broader and deeper than the mere selfish one of gain to this State or to that State. It is a question which enters into the profoundest philosophy of government, whether it is a true principle that the mere accident of the right to vote is to determine the representation of a community. The fathers who founded this Government acted upon the idea not only that the representation, as a principle, in general was to be based upon population, independent of the franchise, independent of citizenship, but there was also always to go with it, for the security of every part of the country, that other principle, that direct taxation, the involuntary burdens which the citizen must bear, must stand always guarded by the right of representation; and therefore it was provided that representation and direct taxation should always go hand in hand in the same ratio. Now, the proposition of my friend from Wisconsin is that we shall discard this time-honored principle, which in my judgment is an impregnable one, that we shall discard the original principle that all society in some form is to be represented in a republican Government, and select a particular few, who are themselves always to decide how that few shall be made up, who are not only to exercise all the powers and privileges of Government, but to exercise that other power and privilege of imposing the burdens upon some other section or some other class of the community; that is to say, if the East happens to be numerous in men and short of money, the eastern men may vote the taxes upon the western property, or the reverse. I know how impatient the Senate is, and without entering at large upon this interesting and profound topic, in my judgment, the proposition of the Senator from Wisconsin is one which is full of inherent error, both in principle and practice, and I shall vote against it. Mr. POLAND. I had prepared some remarks with reference to these amendments generally, and in the course of those remarks I had attempted to discuss the question that is raised upon this particular amendment. Perhaps it may be appropriate that I should deliver them now, although all that I might say is not perfectly germane to this amendment. Mr. DOOLITTLE. Does the Senator from Vermont desire to go on this afternoon, or would he prefer to go on tomorrow ? Mr. POLAND. I am not particular. Mr. DOOLITTLE. If the Senator will give way I will move that the Senate proceed to the consideration of executive business. Mr. POLAND. It is immaterial to me. Mr. HOWARD. I hope that motion will not be agreed to. Mr. SHERMAN. There are quite a number of amendments to be offered, and I think we might as well proceed with them now, and the Senator from Vermont, if he desires it, can have the floor tomorrow. Mr. POLAND. It is quite immaterial to me whether I proceed tonight or tomorrow morning. I give way to the motion for an executive session. Mr. DOOLITTLE. I understood the Senator from Vermont to say that he rather preferred to submit his general remarks on the subject of reconstruction upon this amendment, and he desired to do it before the amendment was acted on by the Senate. It was with that view that I rose to move that the Senate proceed to the consideration of executive business. Mr. POLAND. I yield to your motion. The motion was agreed to; and after some time spent in the consideration of executive business, the doors were reopened, and the Senate adjourned.

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2960 THE CONGRESSIONAL GLOBE RECONSTRUCTION. The Senate, as in Committee of the Whole,

June 5,

1866 THE CONGRESSIONAL GLOBE 2961 resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment proposed by Mr. DOOLITTLE, to strike out the second section of the proposed article and insert in lieu of it the following: After the census to be taken in the year 1870, and each succeeding census, Representatives shall be apportioned among the several States which may be included within this Union according to the number in each State of male electors over twenty-one years of age qualified by the laws thereof to choose members of the most numerous branch of its Legislature; and direct taxes shall be apportioned among the several States according to the value of the real and personal taxable property situated in each State not belonging to the State or to the United States. Mr. POLAND. Mr. President, the few observations which I propose to make are addressed to the general merits of the proposition which is before the Senate, but some of them are addressed to the very point of this pending amendment. I read in a morning paper that it was expected that I would present some important and new views upon the subject. The views that I shall present, Mr. President, may he important in the sense that almost any view that any man may present who has a vote to give on such a subject is important; but that I shall be able to say, after six months' discussion of this subject, anything new is more than I expect. Mr. President, all the questions involved in the proposed amendments to the Constitution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length and in detail. I do not propose to do more than to state, in the shortest and plainest manner I am able, some of the reasons for my action upon the propositions submitted to us by the committee. The clause of the first proposed amendment, that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," secures nothing beyond what was intended by the original provision in the Constitution, that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." But the radical difference in the social systems of the several States, and the great extent to which the doctrine of State rights or State sovereignty was carried, induced mainly, as I believe, by and for the protection of the peculiar system of the South, led to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the States. State legislation was allowed to override it, and as no express power was by the Constitution granted to Congress to enforce it, it became really a dead letter. The great social and political change in the southern States wrought by the amendment of the Constitution abolishing slavery and by the overthrow of the late rebellion render it eminently proper and necessary that Congress should be invested with the power to enforce this provision throughout the country and compel its observance. Now that slavery is abolished, and the whole people of the nation stand upon the basis of freedom, it seems to me that there can be no valid or reasonable objection to the residue of the first proposed amendment: Nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law. It is the very spirit and inspiration of our system of government, the absolute foundation upon which it was established. It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill. The power of Congress to do this has been doubted and denied by persons entitled to high consideration. It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the very foundation of all republican government if they be denied or violated by the States, and I cannot doubt but that every Senator will rejoice in aiding to remove all doubt upon this power of Congress. The second article of the proposed amendments involves many considerations, and opens a much wider field for discussion. I suppose it is the purpose of the Union Republican majority in Congress, when they shall have agreed upon articles of amendment to the Constitution to be proposed for adoption, to say to the southern States which seceded, joined the confederacy, and waged war against the national Government, that as preliminary to their again becoming acting members of the national Union by their Senators and Representatives in Congress

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they must adopt or ratify such amendments. Indeed, one of the bills reported by the committee, accompanying the proposed amendments, proposes this directly, and is a part of the committee's plan of reconstruction. It is objected in the outset to this that the States and people who have remained loyal to the Government during the war for the suppression of the rebellion have no right to affix such or any condition whatever to their return; that, having laid down their arms and ceased active hostilities against the nation, and acknowledged their allegiance and willingness to obey the national laws, no reason exists why their representatives should not be immediately admitted to their seats in Congress and participate in the legislation for the nation; and that to refuse this is really to deny to those States their proper constitutional rights. No public or political question has ever arisen in this country that has excited more ingenious and earnest debate than the legal and political condition of the seceded States after the suppression of the rebellion by the military power of the nation. The discussion began long before the war ended, and before there was occasion for any practical application, and it has continued ever since. I do not purpose to go into this question or to attempt to prove by argument that these States did or did not lose or forfeit their corporate existence as States by their acts of secession and rebellion, or that they are now in or out of the Union. I may say, however, that I was never able to see as clearly as others could anything so illogical and absurd in the doctrine that these States actually forfeited their rights as States and lapsed into the condition of Territories belonging to the Government, requiring reorganization and readmission into the Union as much as if they had never been admitted. Their acts of secession were of course entirely void, and of themselves had no effect; but when the great majority of the people of these States abandoned and forswore all allegiance to the Union, formed themselves into a hostile confederacy, filled every official place in the State with enemies of the Union, and then used all the official machinery of the State, in common with the personal efforts of the great majority of the people, in carrying on for years a bloody war against the nation, it seems to me almost absurd to say that the nation might not, if it so elected, treat them as having forfeited all rights to be considered existing States in the Union, and treat them when subdued as so much unorganized territory. The difficulty now lying in the way of taking this ground and basing the reconstruction or restoration of the seceding States upon it is that the national Government has hitherto, from the beginning of the rebellion down to the present time, proceeded upon the opposite theory; that is, that the States, as such, still existed; that the corporate life of a State was not lost or destroyed by the passage of ordinances of secession or the prosecution of armed hostility by the majority of its citizens. All departments of the national Government having for so long acted upon this ground, it would be exceedingly embarrassing to unsay and undo so much that has been said and done; indeed, it could hardly be done without greatly aggravating and enhancing the difficulties with which the subject of restoration is now beset. Nothing short of absolute necessity could now justify the Government in ignoring State existence in the members of the late confederacy and reducing them to the condition of unorganized territories. Is it necessary for the protection and safety of the always loyal part of the nation to do this? May we not without this require such guarantees and conditions from the seceding States, prior to allowing them to participate in the general direction and government of the nation, as in our judgment the national safety requires? By the most formal and solemn acts of legislation these States withdrew or attempted to withdraw from the national Union; they abjured all allegiance to the national Government; they withdrew their Senators and Representatives from the national Legislature; they formed themselves into a separate and hostile confederacy, of which each of these States was a constituent member; and for four years as a separate nation of States, and by the individual action of the great majority of their people, they made most cruel and unrelenting war against the loyal part of the nation. Now, conceding that all this did not destroy the corporate existence of each or either of these States as a legal essence, it must be admitted that all actual existence of legal relation or connection between those States and the national Union was severed and destroyed. It cannot be claimed that while these States were acting as States in the confederacy and occupying the position of armed and hostile belligerents toward the United States they were at the same time entitled to claim and exercise the rights of States in the Union; to be represented in its Legislature, and participate in its Government. We succeeded by our superior physical power in overthrowing and crushing this hostile confederacy, and compelled them to lay down their arms. Now, before these States can resume their former places in the Union loyal State governments must be instituted and take the place of the disloyal ones that have existed, and then the legal relation and connection between them and the General Government must be restored by some power or department of the General Government. Now, in what department of the national Government does this power rest to say when the people of the

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insurgent States have returned to loyalty, whether the State governments set up anew are really and truly loyal, and then to restore the broken and severed legal relations between them and the Union? Clearly, in my judgment, it must rest in and with the law-making power of the Government, the representatives of the States and the people, the two Houses of Congress. In the progress of reconstructing or restoring these States to loyalty and their former position in the Union, the executive department of the Government has assumed to dictate terms and conditions to those States, which they complied with. The terms and conditions imposed were wise and just in themselves, and I do not take it upon me now to say they were not rightfully exacted by the Executive. But I do say that, in my judgment, there is far more ground of doubt as to the rightful power of the merely executive branch of the Government to do this than there is as to the power of Congress, the substantial law-making power of the nation, to exact the same or other like conditions. It has been said that unless these States have really forfeited their State existence and are out of the Union, we have no more right to exact or impose conditions to their return than we have to impose similar terms upon New York or Ohio; that a State cannot commit treason or forfeit its existence by the commission of crime. But there cannot well be a State, exercising and performing its functions as such, without people; and the idea of the existence of a State in harmony with and yield2962 THE CONGRESSIONAL GLOBE June 5, ing loyalty to the Union, and the people who inhabit it at the same time armed and hostile rebels, is certainly an anomaly. Now, the people of these States are the same who have been rebels, the same with whom we have been at war for years, and from whom we have just succeeded in wresting their arms. Now, can it be possible that we are at once bound to admit these people to actively participate with us in administering the General Government; that we have no more power or right to test their loyalty or require security for it than we have of the people of a State which has always been loyal and true? It seems to me to be confounding all distinction between right and wrong, between innocence and crime, between loyalty and treason. It is said there is no warrant in the Constitution for such a course, and therefore we cannot do it. The truth is, the framers of the Constitution never contemplated such a state of things and made no provision for it. The Constitution, to be sure, provides for the suppression of insurrections; but evidently this never contemplated an extensive rebellion so formidable as to produce for years a division of the nation and a separate de facto government. The real question is, not whether there is any express warrant in the Constitution for it, but whether there is anything in the letter or spirit of the Constitution that forbids it. In my judgment there is not. It is sanctioned by principles of substantial justice and right, and by the great law of self-protection and defense, which is as applicable to communities and nations as to individuals. I conclude, then, that there is no objection to the exercise by Congress of the power to impose any condition or limitation to the return of these States to participate in the government of the nation, which shall be just in itself, and necessary for the safety and welfare of the nation. If, as I insist, we have the right to require of these States suitable and sufficient conditions or guarantees, and that. too, by amendments of the fundamental law, then several questions present themselves upon the amendment proposed. Do we need this amendment for our future protection and the peace and safety of the nation? Does this amendment furnish it sufficiently? Is it doing any wrong or injustice to the white people of the South? Is it just to the negro population of the South? This amendment leaves the general basis of representation, as fixed by the Constitution originally, upon numbers or population. In some of the discussions of this subject in this Chamber it has been strenuously insisted that this is not the true and just basis upon which representation should be based, but that it should rest upon the basis of voters. I entirely disagree with those who have argued for this new doctrine, and in my mind it is clear that the existing basis is the only true one, the only one consistent with the true idea of a representative republican government. The question is not; perhaps, directly involved in this amendment, but still it is not wholly aside from my line of argument. All the people, or all the members of a State or community, are equally entitled to protection; they are all subject to its laws; they must all share its burdens, and they are all interested in its legislation and government. Notwithstanding this no State or community professing to be republican allows all its people to vote. Every one fixes for itself some rule which, in its judgment, will furnish a body of voters or electors who will most wisely and safely represent the wishes and interests of the whole people. The right or franchise of voting has, probably, been more widely extended in these American States than in any other professed republican Government, but in the most liberal of these it has always been confined to a small minority of the whole people. In none of our States

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have females, or males under twenty-one years of age, ever been allowed to vote. In many of the States the right of voting has been restrained within much narrower limits. Persons coming to this country and establishing their permanent residence here are required to remain five years and then to go through an established process of naturalization before they are allowed the privilege of voting. Yet we all know that many females are far better qualified to vote intelligently and wisely than many men who are allowed to vote; and the same is true of many males under twenty-one, and of foreigners who have not resided here for the period of five years. The truth is that the whole system of suffrage of any republican State is wholly artificial, founded upon its own ideas of the number and class of persons who will best represent the wishes and interests of the whole people. The right of suffrage is not given to a particular class because they have any greater interest in the Government, or because they have any more natural right to it than others, nor to exercise it for themselves and in their own behalf, but is given to them as fair and proper exponents of the will and interests of the whole community, and to be exercised for the benefit and in the interest of the whole. The theory is that the fathers, husbands, brothers, and sons to whom the right of suffrage is given will in its exercise be as watchful of the rights and interests of their wives, sisters, and children who do not vote as of their own. While the rules of suffrage are different in the different States, the plan of basing representation in the national Legislature upon the number of voters in each would be manifestly unjust; it might with the same propriety be based upon the number of members in the Legislature of each State. But if the rules of suffrage were the same in all the States, the adoption of such a rule for national representation would be manifestly unjust. The Union contains many very recently settled States, and by reason of the great extent of unsettled country all still have, such must be the case for many years to come. These new States to a great extent are settled by emigration from the older States, and it has been and will ever continue the case that a much larger proportion of this emigration are males. The consequence is that the newly settled States contain a very much larger proportion of males than the older States, and therefore a much larger ratio of voters. Can it be justly claimed that five thousand people in Nevada or Colorado should have the same voice in the Government as twenty thousand people in Massachusetts or New York, even though the number of males above twenty-one were the same in each? I have said more than was necessary upon this particular point. By the existing Constitution the States holding slaves, in addition to their other population, were entitled to have three fifths of their slaves counted in ascertaining their share of representation. By the amendment of the Constitution abolishing slavery, which was really one of the results of the war, this entire mass of slave population, counting by millions, were made free, and as the Constitution stands the States where slavery existed would now be entitled to have the remaining two fifths added to their numbers for representation, although no one of them all is allowed to vote. This very fact, it seems to me, furnishes a very sufficient reason for a readjustment of representation among the States, and an answer to the often-repeated question, why amend the Constitution at all? With no amendment on this subject the late slave States come into the lower House of Congress with a much larger representation than ever before. Is it safe to do this, is it just to the loyal portion of the nation who have borne such immense burdens to maintain its existence? If not, I hold we are not bound to encounter any such peril. For a long period of years sectional hatred toward the North had been cultivated in the South, in consequence of our dislike and condemnation of their wicked and anti-republican system of human slavery. This feeling was excited and fomented by the arts of ambitious and designing men till it broke out in a gigantic rebellion for the purpose of separating from us and forming separate government for themselves — the most terrible and bloody civil war the world has ever seen, lasting for four years; characterized by almost innumerable instances of cruel and barbarous hate on the part of the insurgent States. We finally succeeded in putting down the rebellion, overthrowing the government they had set up, and adding the mortification of total defeat of their cause to their other reasons for hating us and disliking our Government. These people have submitted to the national Government because they have been compelled by force to do so. But have we any evidence that justifies the belief that they are now ready to yield willing allegiance to the Government and obedience to its laws? All the mass of evidence taken by the reconstruction committee, the tone and sentiment of the almost entire southern press, the information derived from private sources, concur in showing that as yet no such thing exists to any considerable extent, and that the feeling of hostility to the national Government and northern people is as great now as it was while the war was raging, and that the submission to the laws and authority of the Government is the enforced submission to superior power. Does any one doubt that if an opportunity was now offered for an effectual separation it would not be embraced by a far larger majority of the southern people than that by which their acts of secession were adopted? Looking at the circumstances we could hardly expect to find it otherwise now, and I respect those people

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more for the open and undisguised avowal of their sentiments than I should if they hypocritically pretended to acquiesce cheerfully and rejoicingly in their own defeat. We must rely upon time, emigration, the intercourse of business, interchanges of kindness and good will, and especially the beneficent and protecting care and influence of the Government to foster and build up a feeling of attachment to the Union and to allay the bitterness and asperity now existing. In this view it has seemed to me that it was not so desirable as many others have believed it to be that great haste should be made in their restoration, and that our reunion with them would be much more likely to be harmonious and lasting if done coolly and deliberately than if we rushed to embrace each other. But the question is, whether in the present state of facts it is safe and just to the nation to admit these States to participate in the government of the nation upon such terms as will incur any hazard of their being able to take the control of it, and if they choose injure or overthrow it? I have heard it asked what harm they could do if admitted to full representation in Congress and were able by political affiliations and alliances to control the legislation of the nation. I will refer to but one of the many things which might be most disastrous to the people of the loyal States. To carry on the war and suppress the rebellion we have incurred a debt to the enormous amount of $3,000,000,000. The great bulk of this debt is held by the people of the North. Much of it is held by capitalists, but not all, by any means. It has entered into all the transactions of society and business. All public trusts, whether educational, charitable, or religious, are invested in it, as well as nearly all private trusts for widows, minors, or others. The entire currency of the country is composed of it or based upon it. In addition to this it is most extensively held among the people; in my own State I know that almost every man who had any money to invest, whether the amount was great or small, now holds it in Government bonds. Indeed, I think I may say that except what is invested in business or in business corporations, the great mass of the money capital of the North is now in the national securities. To pay even the interest on this debt and our immense annual pension-list will require taxation for us of unexampled severity for many years to come. 1866 THE CONGRESSIONAL GLOBE 2963 Now, this debt has all been incurred in putting down the southern rebellion; our great pension-list is to reward or reimburse those who have suffered on our side in the same cause. The war to a great extent has devastated the South; very many have been made poor and destitute; they have lost their slaves, whose value they counted by thousands of millions; almost every one suffered loss by the bubble of the rebel debt; they have their thousands of maimed and disabled men and their thousands of widows and orphans dependent upon them for support, and for whom no provision can or will be made by the nation. Under these circumstances will they not be restive under our heavy taxation to pay our national debt and our pensioners? Say what we will, say what they will, the truth is that if they can avoid aiding in its payment they will do so, and pretexts enough will be found in some fancied or pretended injustice to them on our part to justify such action on theirs. In saying this I do not mean to assert that these people are more faithless or less sensible of obligation than we are, for I have very little doubt that under the same circumstances we should do the same thing. It is hardly in human nature to do otherwise. It is said we ought to be magnanimous and trustful toward these people; put full faith in their promises and oaths; that we have no right to assume they will not keep them. I would certainly extend all magnanimity to them. I would trust all their oaths and promises which I believed they would keep. But I should hardly desire to trust them to fulfill a promise which under the same circumstances I fear I should myself find some excuse for breaking. But I do not think we are specially called upon to trust or put faith in official and governmental oaths taken by our southern friends. Can they ever be more solemnly bound to the Government and to yield it their allegiance than they were at the very moment they seceded and violated their oaths? Our faith can hardly be strengthened by our experience. This class of oaths has not in latter years been found very binding on the individual conscience, and of them we may say, with Hudibras— "Oaths are but words, and words but wind, Too feeble implements to bind, And hold with deeds proportion so As shadows to the substance do." But what have we to fear from them if admitted into Congress with all the representation they would have without any amendment of the Constitution? The North would still greatly outnumber them, and could always vote them down.

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It is sneeringly asked, do you not consider yourselves their equals? Are you such cowards and poltroons as to be afraid of being beaten in debate and overthrown by these southern gentlemen with such odds in your favor? It is not hard to answer these questions in fact, but it is hard and humiliating to be compelled to acknowledge where the real danger lies. For many years prior to the rebellion the North had a large numerical superiority over the South, and a much larger delegation in Congress. She was still more largely her superior in wealth, in business, and in all material and scientific advancement. But notwithstanding all these advantages to the North, the South ruled the nation. Why? The answer is short: by the aid of her northern allies. To go back no further than the war of the rebellion: did we not have many men in the North who sympathized with the rebels; who counseled resistance to the draft, and threw every obstacle in the way of the successful prosecution of the war; who rejoiced at our defeats and rebel victories? Did not a large party in a national convention resolve that the war for the suppression of the rebellion was a failure and ought to be stopped? Now, if men could be found who would do this when the nation was in the very mortal agony to preserve its existence, is it uncharitable to suppose that to make a successful political alliance and get into power, men would not be found who would unite on a platform of repudiation of the national debt? Why, in my part of the country the war cry of a certain party has been "Taxation of the national securities!" which was but a partial repudiation of the contract of the Government. I do not desire to dwell upon this point; it is not a pleasant theme either for reflection or discussion. Considering the immense pecuniary stake the people of the loyal States have in the national securities, and the universal disaster and calamity which would attend their repudiation, or even any great distrust of them, it behooves us to be cautious and sure that we open no possible door for the entrance of such danger. In my judgment, the admission of the southern representatives without such an amendment of the Constitution as the new and changed condition of southern population requires in order to be just, would subject us to that very peril; indeed, that it would be sure to come. I would prevent it. Will this amendment, if adopted, furnish the needed protection; or in other words, will the South, even with the aid of northern allies, be able to obtain the control of the Government or of Congress? If these States refuse to extend the right of suffrage to the colored men their representation will be confined to the white population. This number, especially of males above twenty-one years of age, has largely decreased during the war, and this deduction, together with that to be made for the three fifths of the slave population, would so reduce the congressional representation of the seceding States that no reasonable fear need be entertained that even with the aid of northern allies would they be able to obtain control of the Government. If, to enlarge their political power and representation in Congress, they extend suffrage to all the colored men, such an element of loyalty would thereby be infused into the ballot-box that, added to the white loyalty existing there, we might safely count upon a portion of their representation being reliable, true Union men, and thus avoid a solid sectional vote against the interests of that part of the country which has saved it. In my judgment, there is no reasonable ground of fear, whether they do or do not extend suffrage to colored men, that the control of the national Government can be placed in disloyal hands. Will the adoption of this amendment work any wrong or injustice to the white people of the South? While slavery existed they were allowed representation upon three fifths of their slaves. It is somewhat difficult to see any principle upon which this basis was adopted. If they stood upon the same footing as the nonvoting white population, then they should have had representation for the whole number; while if they were regarded as property merely they should not have been counted at all, as no property qualification was established or allowed in other respects. If any representation at all was allowed, it was proper that its exercise should be given to the masters, as the condition of absolute dependence and submission in which the slaves stood rendered all free and intelligent choice impossible on their part, and if the slaves had any interest to be protected it was the master's and not theirs. The master might possibly be regarded as the head of a family, of which the slaves formed a part, and so their proper representative; but I agree that the analogy is exceedingly faint. But the compromise by which this partial representation was allowed for slaves had probably very little foundation in any just principle of representation, but was one of the arbitrary compromises by which the conflicting interests of the two sections were adjusted. The North consented to so much representation, in consideration that direct taxes should be laid in the same manner. Like all the compromises that have been made, the South had the best of it, as they had a large and constant representation from it, while the direct taxes have been too small and unfrequent to furnish any corresponding advantage to the North. But slavery is over and ended. The slaves have been made free. The masters can no longer claim to represent them, either on the ground that they are members or dependents of their families or that they own them as their

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property. The former ruling class in the South say, "These people, now having become free persons, we are entitled to have our representation raised by the enumeration of the whole for that purpose." "Very well," say we, "let the same rule of suffrage extend to them as is applied to the white people, and be represented for them all." "By no means," it is answered; "they are too ignorant to know how to protect their own interests in voting, and therefore we will vote for them; and still more, we cannot permit them to vote because it would tend to elevate them socially to something like the elevated plane upon which we stand, which we will not submit to." Is there any just ground upon which the southern whites can claim that they should represent the negro population, especially those lately held in slavery? Do they stand in the same relation to them that the fathers, husbands, and brothers of a northern community do to their non-voting women and children, whose interests are as dear to them as their own? How opposite in theory and in fact is the relation between them. They do not regard them as having a common interest to be supported, but as a hostile element in society to be spurned and crushed. It seems to me perfectly manifest that upon no just principle should representation be allowed to the whites on account of the negroes. Suppose we tort this by the actual choice of the negroes themselves. If the negroes were allowed to choose representatives themselves, and to choose between their former masters or others like them and men like the senior Senators from Massachusetts and Ohio, which would be elected? I would be willing to wager well on the success of my friends here. I think it perfectly just for us to say, "If you will not let these people vote you shall not alone represent them, but we will do it jointly. We believe we have their true interests at heart. quite as much as you; we believe we understand their wants quite as well, and we are satisfied they will be more content under our joint representation than under yours alone." Does this amendment do justice to the colored people of the South? Mr. President, I am sorry to feel compelled to say that I do not think it does. I cannot feel satisfied with a scheme of reconstruction of these rebel States which gives no direct and immediate benefit to the only class of loyal people living in them. When I remember how loyal and faithful these people ever proved; how they fed, clothed, concealed, and guided our prisoners who had escaped from rebel prisons and starvation; how faithfully and truly they brought us information and guided our troops; and more than all, how gallantly they fought by the side of our men, and how nobly they yielded their lives to save the nation, I feel that something more direct should be granted to and done for them. I should be much better satisfied if the right of suffrage had been given at once to the more intelligent of them and such as had served in our Army. But it is believed by wiser ones than myself that this amendment will very soon produce some grant of suffrage to them, and that the craving for political power will ere long give them universal suffrage. Such I know to be the opinion of many intelligent Union men of the South with whom I have conversed. I trust the result may be as they predict, and that the day may come when in all the nation, as in my own free State, the law shall make and know no difference between men on account of race or color. Believing that this amendment probably goes as far in favor of suffrage to the negro as is practicable to accomplish now, and hoping it may in the end accomplish all I desire in this 2964 THE CONGRESSIONAL GLOBE June 5, respect, I shall vote for its adoption, although I should be glad to go further. The substitute for the third section, which we have adopted, disables the leaders of the rebellion both civil and military, from holding office unless restored by act of Congress. Can the South, can the men who are thus disabled, complain of this? Were ever men who had been guilty of armed rebellion against their lawful Government treated with such lenity? The history of the world shows no parallel of mercy like this. Never before was there a rebellion of half the magnitude of this, I might say of a hundredth part the magnitude of this, that the streets did not run with the blood of the offenders. A war without cause, or pretended cause, except that the opposite party had carried the election in a constitutional way, which resulted in killing and disabling probably half a million men on our side, involving us in a debt of $3,000,000,000 to burden us and our children after us, and we exact as a penalty for it, and as a measure of safety for ourselves, that the leaders, instead of being hung shall not hold office unless Congress shall for their good behavior or other cause remove the restriction. What if they were the subjects of a political delusion? What if they had been taught that a State had the constitutional power to secede? Have not all rebellions had as good a foundation, and those who were hanged for it been as sincere in their belief in the justice of their cause as any man in this rebellion was? This has never been regarded as any answer to the legal liability. If a man or set of men make war against their Government they do it at the peril of making the war successful or of taking the legal consequences. If when the rebellion was over we had said to every man engaged in it, "We will allow you to retain your life and your property, but you shall never participate in the Government of the country you have attempted to

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destroy, by voting or holding office," it would have been all they could have expected or had any right to expect. This is the basis upon which Maryland, Missouri, and other States have settled it for themselves. But we leave the great mass utterly untouched, and the leaders with their lives, their property, the full enjoyment of all their civil rights and privileges, with the right of voting for all officers, both State and national, with the single restriction they shall not hold office. The disproportion between the cause and the consequence is so great as to almost make it ridiculous. I know it is said that this is a measure so harsh and severe that it will not be accepted by the South. But I do not believe so; on the contrary, I believe it will be acceptable to the masses, that they will consider it a very easy atonement, and that if there is anything like punishment in it, it falls where it is deserved. If there be any included in this class (as it is agreed there may be) who were really forced into the rebellion against their will, it will be very easy to procure absolution by making the fact appear to Congress. The remaining propositions of amendment, declaring the sacred and inviolable character of our national obligations, and the illegality and invalidity of the rebel debt, and of any compensation for the slaves who have been freed, admit of no doubt as sound propositions in themselves. The only question that can be made upon them is the propriety or necessity of incorporating them into the fundamental law. For myself, I think that although these may in a certain sense be said to be matters of a temporary character, still they involve interests of such immense magnitude that it is proper they should be settled in the most solemn and enduring mode, and that their incorporation into the Constitution will save disputes and wrangling hereafter. Mr. President, it has been said that all these proposed amendments, as a whole, as a general plan for the restoration of these States, will not be acceptable to them, and that they will not adopt them, or at least that they will not do it willingly; and if they adopt them at all it will only be under a kind of coercion and because they cannot otherwise obtain what they seek; and that we have no right to secure even proper amendments in that way. It seems to me that this plan, as a whole, is characterized by so much moderation and forbearance that it cannot fail to commend itself to the people of these States so that they will readily and freely give it their sanction. But, sir, if it be true that they are not satisfied with it, and will only adopt it to secure their return to share in the national power, I am so well satisfied that this plan contains nothing but what we have the right to insist on, and which justice to the nation requires, that I should feel no hesitation in saying kindly, but firmly, "You must acquiesce in these amendments before we will permit you to take part in the administration of the General Government." There is nothing new in this, either. Did these States accept the amendment abolishing slavery willingly — a much more important matter to them than anything contained in these propositions? Did they declare their ordinances of secession null and void or declare the rebel debt invalid willingly? We know they did not, but only because the President required it of them. Has any one ever blamed the President or thought he was unjust to the South in these requirements? If the people of the nation, through their representatives, believe that something more should justly be required, they have the equal right and should exercise the right to demand it. We should not exercise our power to make any unjust demand, but what is just and right to exact we should be wanting in our duty if we fail to have done. Mr. President, it is a matter of great satisfaction to me that at last, after so much and so anxious deliberation, it appears so probable that Congress will be able to present a plan upon which the requisite majorities of both Houses will be able to agree, and especially when as a whole this plan commends itself so well to my own judgment of what is right. It is known that some differences of opinion have existed between Congress and the Executive on this subject. Great differences have existed among ourselves; many opinions have had to yield to enable us to agree upon a plan. If we are so fortunate, as I trust we shall be, to pass these propositions by the requisite majorities, although they may not in all respects correspond with the views of the President, I believe he will feel it to be his patriotic duty to acquiesce in the plan proposed, and give his powerful influence and support to procure their adoption. We are all aiming at the same grand result, the difference is rather in the choice of modes and means to attain it. We are all, I trust, actuated by the same high motives of patriotism and all desire to see all these States again acting harmoniously together. In a matter of such grave importance, with no precedents for our action, with no guide in the Constitution but that furnished by its general spirit and purpose, it is not singular that great diversity of ideas should exist. In such case opinions must yield to some extent, or else nothing could be agreed or settled, and all would be anarchy. I will not allow myself to believe that these measures will not, under the circumstances, receive the sincere support of the President, although he may not believe them perfect. Mr. President, there are men who believe we are now on the verge of ruin, and that we shall never again become a united and harmonious people. But, sir, I believe they are either cowards or croakers, who always see

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the dark side of the picture. For myself, I see no such cause of alarm. To me everything looks hopeful for the future. We have just gone through the greatest war the world has ever seen. An unparalleled social revolution has taken place in the South — three or four million people turned from slaves into a free people. That in so short a time after these great events so much of order and quietness and obedience to law should exist is astonishing. The world never witnessed its parallel. We did not expect it ourselves before the close of the war, but now we are impatient and troubled because it is not better. Time alone will smooth and allay the stormy waves of excitement and passion caused by such momentous events. To me, sir, a great and glorious future is opening for our country. Slavery, the great blight and curse that has hung upon us, is ended forever. The South, so long retarded by it, will be opened and expanded by the influence of free labor and free institutions. A new agriculture will enrich and beautify her fields. Commerce and manufactures will build up busy towns and carry thrift and wealth along her great rivers. All causes of discord between North and South being over, we shall become a homogeneous nation of free men, dwelling together in peace and unity. United and wholly free, our power would awe the world. I hope to live to see the day when all will agree that this great war which has destroyed slavery, severe and burdensome as it was to this generation, was yet one of those "blessings in disguise" sent by the Great Ruler of all which proved the very salvation of the nation. Mr. STEWART. Mr. President, as I shall vote for the plan agreed upon among my political friends, it is proper that I should make a brief statement of my reasons. While it is not the plan that I would have adopted, as is well known, still it is the best that I can get, and contains many excellent provisions. It repudiates the rebel debt and affirms the sacred obligation of the nation to pay the debt contracted in preservation of the Union. It does not base representation on voters, which I preferred, but it approximates it more nearly than any other plan presented, and recognizes the principle that a white man in the North is entitled to equal representation with a white man in the South. It declares that all men are en-titled to life, liberty, and property, and imposes upon the Government the duty of discharging these solemn obligations, but fails to adopt the easy and direct means for the attainment of the results proposed. It refuses the aid of four million people in maintaining the Government of the people. It involves freedmen's bureaus, civil rights bills, test oaths, and exclusion from office, all supported by military power. I would not object to these, for I recognize the obligation of full protection for all men, if there were no cheaper, easier, and better plan for the attainment of this worthy object. But the reasons why I can support this plan are, that it recognizes the obligations, which I hold sacred, and does not preclude Congress from adopting other means by a two-thirds vote, when experience shall have demonstrated, as it certainly will, the necessity for a change of policy. In fact it furnishes a conclusive argument in favor of universal amnesty and impartial suffrage. The longer the North strives to protect the negro and the white loyalists of the South from sure violence at the hands of rebels by military power, supported by grievous taxation, with increasing danger of a consolidated and despotic Government, the more clearly will the necessity appear of returning to first principles, and according the ballot to all men. It is not the first time that the black man's aid has been spurned by this Government and it will not be the first time that necessity has driven us to avail ourselves of his support. While his labor was added to the power of treason traitors were triumphant; when it was subtracted and added to the material resources of the Government the Union forces were victorious. While his political power is ignored or added to disloyalty free government in the South is impossible. When it is withdrawn from rebels and added to the loyal forces the Union and republican institutions will be safe. The utter impossibility of a final solution of the difficulties by the means proposed will cause the North to clamor for suffrage. Test oaths, exclusion from office, and military rule 1866 THE CONGRESSIONAL GLOBE 2965 will make the South anxious for amnesty, now so lightly considered, and willing to take suffrage to avoid certain and greater evils. While the way is left open, as it is in these resolutions, for both mercy and justice, the logic of events will work out the great problem, and satisfy all who are not now satisfied that the march of this country must either be toward consolidated, arbitrary power, supported by enormous taxation, or toward amnesty and suffrage, union and liberty. If the arguments presented by this plan do not convince at once time will do the work. I will further remark that it is a better plan than I expected could be agreed upon, and I hope much good from it. It may lead to a final settlement, and with that view I shall give it my support. Mr. HOWE proceeded to address the Senate. Without concluding, he yielded the floor for an executive session. [His speech will be published in full in the Appendix.] On motion of Mr. HOWARD, the Senate proceeded to the consideration of executive business; and after some time spent in executive session the doors were reopened, and the Senate adjourned.

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2984 THE CONGRESSIONAL GLOBE June 6, RECONSTRUCTION. The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment proposed by Mr. DOOLITTLE as a substitute for the second section of the proposed article of constitutional amendment. Mr. HOWE resumed and concluded the speech commenced yesterday. The entire argument will be published in the Appendix. Mr. DOOLITTLE. Mr. President, the Senate will bear witness, and I have no doubt my colleague will cheerfully accord the same, that never upon any occasion has a word fallen from me calculated or intended to wound in the slightest degree the good name or good fame of my colleague. I think no such word ever escaped me, and if I know my own heart no such word will ever fall from my lips. But the remark which my colleague made when he concluded his sentence which had reference to me, that in my history I had, politically, been found where office or position brought the highest price is a remark which if not construed with more charitable feelings than most men are capable of exercising, might be supposed to contain some reflection upon the integrity of my purpose in my political action. Sir, I claim no infallibility; I am as liable to mistakes as other men; but what I do claim is that in what I have done in my political life I have intended to do right. I may have erred in not carrying those intentions fully into effect; but, sir, that I ever intended in the slightest degree to swerve in my political action for the sake of offices or the price of offices in the market, is to those who know me a statement wholly without foundation. 1866 THE CONGRESSIONAL GLOBE 2985 Mr. HOWE. My colleague does not mean to say that I have charged him with any such thing. Mr. DOOLITTLE. My colleague does not assume to charge it, but assumes to say that it looks like it. Mr. HOWE. No, sir. Mr. DOOLITTLE. I understood my colleague to say that from my course it would seem that I was the most fortunate of all politicians to be always where the offices could be obtained which commanded the highest price in the market. Mr. HOWE. No; not even that, though that is very different from what my colleague was replying to. After stating the situation of parties and political affairs at these periods, I did remark, expressly disclaiming any idea of charging him with being untrue to his convictions, that it was a most fortunate coincidence that he had always happened to have the very convictions which at those different periods bore the highest price in the market. Mr. DOOLITTLE. Mr. President, those words arc equivocal. The inference to be drawn is substantially what I said, if not to cast an imputation, to raise a question as to the sincerity of the motives which have controlled me. Now, Mr. President, it is not pleasant for a man to speak of himself; it is not becoming on ordinary occasions that a man should speak of himself or for himself; but, sir, upon a point like this, I may be pardoned if I allude to other crises in my life in which I have been called upon to take important and decisive action in relation to my political course. And first, sir, I refer to 1847. In the convention of the Democratic party of the State of New York, when we were in possession by force of arms of the territories of Mexico, and the question of their disposition was to be determined, after Mr. Polk, then President, had recommended the disposition of those territories in such a manner as to give to slavery a considerable portion of them — under these circumstances, and when the responsibility was upon the country, I, as a member of the dominant party of the country, (a party which had the Executive, which had both branches of Congress, which was in a large majority in almost all of the States,) had occasion upon my responsibility to take action upon the pending question raised by the situation of affairs; and that question was the same question which for twenty years has been the great issue, shall slavery be extended into the Territories of the United States or not? As a member of the convention of the dominant party in the State of New York I brought forward that resolution denominated the "corner-stone resolution," upon which we separated ourselves from the majority and the dominant party in the State, and organized what was denominated the Free-soil party of the State of New York. That cornerstone resolution stood at the head of the leading newspapers of New York and New England and Ohio, and Wisconsin, too, as the corner-stone upon which the Free-soil organization was laid. Sir, for no purpose but to carry out what I believed to be the duty resting upon me and carrying forward the true interests of the country, we deliberately went into a great minority, abandoned the majority and office and all chance for office, all place and all thought of place, abandoned all to give ourselves to the principle which was

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involved in the struggle. What followed? The Democratic party was overthrown; General Cass, its candidate, who was in favor of what was called the diffusion of the institution of slavery by way of absorbing it and blotting it out, was laid aside, and General Taylor was elected. What then intervened? One of those things which seem almost, as we look back upon it now, as the special providence of Almighty God. The discovery of the gold mines of California happening just at this time carried the people of the free States by hundreds and thousands into that new Territory just acquired from Mexico; and they organized a free State government with a free constitution, came to Congress and demanded admission, and Congress dared not refuse, for California was the golden State, and a rising State on the west side of the Rocky mountains, and she could not be held against her will. She demanded admission; and the Senate of the United States, pro-slavery as it was, was compelled to yield to the demand, and California was admitted as a free State. That was the result of the organization of the Free-soil party of 1847 and 1848. It was a victory for freedom by the admission of that free State which gave in this Senate a majority to the free States of the Union. What then occurred? There was got up what was called a grand compromise. All the great Whigs and all the great Democrats of the country in this body and in the other House got together and produced what was called the compromise of 1850, and then it was proclaimed by the great, men of the country, "The slavery question is now forever ended; it shall never be agitated again; now the country shall be quieted; we shall hear no more upon that subject." The two parties went into the nomination of their candidates in 1852 upon precisely the same platform in that respect. The Whig party nominated General Scott, and they declared there should be no discussion of the slavery question at all countenanced or encouraged. The Democratic party nominated General Pierce, and they declared the same thing, so that upon this question in 1852—the time when my colleague charges upon me that I abandoned the cause which I had espoused in 1848 because he says I gave my support to General Pierce in 1852 —both the great parties of the country occupied the same ground. It is a fact to be noticed also that the great majority of the Free-soil party with which I acted in 1848, in the State of New York, as well as in Ohio and Wisconsin, went into the support of General Pierce in 1852. There was only a little, small remnant of that party who voted for Hale, who was in 1852 the candidate of what was called the Liberty party. There were a few who did so. The honorable Senator who now occupies the chair [Mr. POMEROY] was one who adhered to Mr. Hale, and I believe the honorable Senator from Massachusetts [Mr. SUMNER] also adhered to Mr. Hale in 1832; but there were very few of the Free-soil organization either in Ohio or in New York or in Wisconsin who did. Here was no abandonment of principle on my part. It is true I went upon the bench in 1853, having been elected in 1852, in the State of Wisconsin. From 1853 to 1856 I was constantly engaged in the arduous duties of judge of the first judicial district of Wisconsin, which at that time was the most populous and had the most business of any of the judicial districts of the State; and while I was on the bench I had sufficient regard to what I thought were the proprieties of that position not to engage publicly in political affairs; but from the moment the Democratic party, which had elected General Pierce on the pledge that the slavery question should not be reopened, proposed the repeal of the Missouri compromise, to every person who conversed with me on the subject I freely, openly, frankly declared in opposition to the project, and said that it would be the dissolution and the destruction of the Democratic party. My colleague refers to the fact that in 1856 I gave my open adhesion and my public support to the election of Mr. Fremont, but says that I did not write a public letter or make a public speech until after the adjournment of Congress. You remember, sir — and I know you do, for you were a resident of Kansas at the time — that for long months here in Congress the very question pending was whether Congress would enforce the border-ruffian slave code of Kansas, or would repeal it. If Congress had repealed it, Kansas would have been a free State. I did not desire to go into political life or to go into a struggle. I was engaged in my profession, a profession that brings more profit and much more ease than any place like those we occupy here. I had no desire to go into it; but when the Congress of the United States, under the influence of the Senate of that day, determined that they could enforce that bloody code upon the Territory of Kansas, I could not withhold my declaration. Sir, it was like fire in my bones and in my heart. It demanded and would have utterance; and when the utterance came it came red hot in the denunciation of the infernal outrage that was thus practiced upon the people of that Territory; and as my colleague says — it would not be becoming in me to say it — the people of Wisconsin perhaps did feel grateful for what I did in the canvass of 1856 in denouncing the Democratic party and overthrowing it and trampling the organization under our feet which would justify and sustain an outrage like that. Mr. President, I never sought alliance with the Republican party because it had offices whose price was high in the market — no, sir; never. My colleague refers to my course in Wisconsin. Sir, during the last six months, ay, more than six months past, in the State of Wisconsin no man has struggled harder than I have struggled to save

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the Union party, to save it to its platform, to save it to its principles, to save it in its supremacy. There is hardly a man in Wisconsin this day who does not know that the success of the Union party there is due to those men who in the convention at Madison united with me and agreed with me in opinion there and in resisting what was there proposed, to wit, to declare by the resolutions of the Union convention that the States of the South should never have representatives in Congress until they extended universal suffrage to negroes. Because we resisted that in the State of Wisconsin we saved the Union party and elected its candidates by nine thousand majority when the very proposition presented to the people based upon negro suffrage was voted down by nine thousand. Had we, consulting the public newspapers, consulting the denunciations and the clamor of the hour, been false to our position and false to the crisis, had we yielded to that clamor, the Union party would have been utterly overwhelmed in the State of Wisconsin at the last election. Mr. President, it has been charged that it was through my instrumentality that that convention refused to adopt any such new creed or new platform which never had been incorporated as a part of the Union creed or the Union platform. I have been charged with the responsibility of that. If the responsibility of that rests upon me, then it is true that I had the honor of saving the Union party of Wisconsin in its struggle last fall. But has the course pursued by me there saved me from the denunciations of the public press? Not at all. For six months, from one end of Wisconsin to the other, ay, from Boston to St. Paul, by every one of a certain class of newspapers I have been denounced as a traitor to the Union party because I saved it from defeat. Sir, it is not the first time in the history of the world that men have turned in to crucify their saviour. So far as I am concerned, my political life may be ended; but the principles for which I have contended, the principles for which I have made the struggle, will live. Men may suppose that those principles are crucified; they may imagine that the doctrine of the right of the States to control their own institutions, so far, at least, as to be permitted to declare who shall exercise the right of suffrage within their limits, is crucified and buried in the tomb, with a stone rolled at the door; they may imagine that these principles are dead and buried and will never rise again. So far as individuals are concerned, it is of but little consequence. I, as an individual, may have met denunciation; perhaps I may be consigned to defeat; but what of all that? What care I, if the principles live? I tell you, Mr. President, and it is as certain as that the sun will rise tomorrow, that the great principles for which I have contended will live; their resur2986 THE CONGRESSIONAL GLOBE June 6, rection is certain; and those who stand in opposition to them will find that they are living, vitalizing principles; that they will have recognition, and you cannot keep them buried out of sight. Mr. President, I have been betrayed, perhaps, into saying more than I would have said under other circumstances. I have no unkind words to my colleague, no questions upon the sincerity of his course, no imputations upon his motives. I only rose to say, in my own defense, that so far as my intentions are concerned, I intend to pursue the right, if I know where it leads; and, God helping me, I will pursue it to the end, be the consequences what they may. Mr. DAVIS. Mr. President, the pending question before the Senate is, I believe, the amendment proposed by the Senator from Wisconsin, [Mr. Doolittle.] If it be the pleasure of the Senate, I should like to have the vote taken on that proposition now, so that I may have the opportunity of offering two or three amendments myself. The PRESIDING OFFICER, (Mr. Pomeroy in the chair.) The question before the Senate is on the amendment of the Senator from Wisconsin to the second section, upon which the yeas and nays have been ordered. Several Senators. Let it be read. The SECRETARY. The amendment is to strike out the second section of the proposed article, and in lieu of it to insert the following: After the census to be taken in the year 1870, and each succeeding census, Representatives shall be apportioned among the several States which may be included within this Union according to the number in each State of male electors over twenty-one years of age qualified by the laws thereof to choose members of the most numerous branch of its Legislature; and direct taxes shall be apportioned among the several States according to the value of the real and personal taxable property situate in each State not belonging to the State or to the United States. Mr. TRUMBULL. I would inquire if we did not vote on that direct proposition once before. Mr. DOOLITTLE. No, sir. Mr. CLARK. It was submitted, but not voted upon. The PRESIDING OFFICER. The vote has not been taken. The yeas and nays have been ordered. Mr. HOWARD. I hope the vote will be taken.

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The question being; taken by yeas and nays, resulted―yeas 7, nays 31; as follows: YEAS―Messrs. Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, and Riddle—7. NAYS—Messrs. Anthony, Chandler, Clark. Conness, Cumin, Edmunds, Fessenden, Foster, Grimes, Harris, Howard, Howe, Kirkwood, Lane of Indiana, Morgan, Morrill, Norton, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Williams, Wilson, and Yates—31. ABSENT—Messrs. Brown, Buckalew, Creswell, Dixon, Henderson, Lane of Kansas, McDougall, Nesmith, Saulsbury, Willey, and Wrigh —11. So the amendment was rejected. Mr. DOOLITTLE. By the courtesy of the Senator from Kentucky I desire to offer another amendment. It is not the same as the last; it differs in this respect, that it bases representation upon male citizens who are voters, and not on male electors simply. I do not suppose it will give rise to any discussion. I merely offer the amendment, and ask for the sense of the Senate by yeas and nays. The yeas and nays were ordered. The Secretary read the proposed amendment, which was to strike out section two and in lieu thereof insert the following: Representatives shall be apportioned among the several States which may be included within this Union according to the number in each State of male citizens of the United States over twenty-one years of age qualified by the laws of such State to choose members of the most numerous branch of its Legislature, and including such citizens as are disqualified by participating in rebellion. Direct taxes shall be apportioned among the several States according to the value of the real and personal taxable property situate in each State not belonging to the state or to the United States. Mr. HENDRICKS. I voted for the amendment proposed by the Senator from Wisconsin, not that I believe that representation in this country ought to be based upon the voting population, but I voted for it as I thought it better than the proposition that is before the Senate from the committee. I think representation ought to be based upon population, and that taxation ought to rest upon the property of the country ad valorem; and now that this question has been raised in this country, I believe it will yet come to that before the question is finally settled. Mr. SHERMAN. I shall detain the Senate but for a moment to explain the reasons for the vote I shall give in opposition to what is my own deliberate judgment on the question now pending. The more I think of this question the more I am convinced that the true basis of representation in the present condition of affairs is the number of male citizens who under the laws of the States are allowed to vote. This proposition, it seems to me, is a simple one, plain and obvious, which puts a citizen in one State on a footing of precise equality with a citizen in every other State, which equalizes the political power of all citizens, and which will destroy all sectional animosity. If this amendment be adopted, a citizen of the State of Ohio has precisely the same political power with a citizen of the State of Massachusetts or of South Carolina, no more and no less. The same number would be required in each State to elect a member of Congress. The number of citizens could be easily ascertained by the census, and the census rolls could be attested very readily at each annual election. This proposition is simple, plain, and obvious; and yet under the necessity in which we are now placed I shall feel called upon to vote against it. My reason for this I will briefly state. In my judgment some change ought to be made in the basis of representation. The condition of the negro population in the southern States, now deprived of all political power, is such that to give to the white people of those States the right to vote for the negro population and represent them is to give them an undue advantage, one which we could not justify even if they had not been in rebellion. There is no reason why the white citizens of South Carolina should vote the political power of a class of people whom they say are entirely unfit to vote for themselves. If there is any portion of the people of this country who are unfit to vote for themselves, their neighbors ought not to vote for them. The plain and obvious principle of representation is that every voter should vote for himself, and for no one else; those who have not the right to vote should be represented by the majority of the voting population, and not by their immediate neighbors. There is no reason, for instance, why because the State of Massachusetts has a preponderance of women a voter in Massachusetts should count more than a voter somewhere else. There is no reason why, because in the city of New York there is a very large element of unnaturalized foreigners, a voter in the city of New York should have more political power than a voter anywhere else. There is no reason why, because a white man lives in the South, where they have a large mass of negro population, a white man in the South should have more political power than a white man in Ohio. There is no reason why, because in Ohio we have a greater proportion of voters to our population than they have in other States, we should be deprived of political power. The truth is that every man who has the right to vote should be counted one, and the aggregate of votes should then be divided by the proper

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number of Representatives in the political body — the House of Representatives —in order to arrive at a true and correct apportionment. That is a plain and obvious principle, and if that principle was adopted the southern States would feel no local jealousy. They could not feel any. No State and no community would have the right to complain. The laws of the United States would fix the naturalization of the foreigner; birth would fix the citizenship of the native; there could be no controversy. Then every citizen would stand equal before the law, with precisely the same political power, no more and no less. I say, therefore, that this is the only amendment to the propositions now submitted to us that I desire to make; but I feel bound by the action of my political friends to vote against this amendment. I place my vote distinctly on this ground: here are propositions upon the details of which men would naturally differ, and it was therefore necessary for those who intended to support the mass of the propositions to confer together and agree upon those which they could support. There must be at some point of every controversy of this kind some surrender of individual opinion. Although my opinion is as clear as it can be upon any subject that this amendment is right in itself, both branches of it, yet as we were compelled to unite on some measure — and we must all yield some of our opinions upon various questions involved — there are five sections in this proposed article — I feel bound to vote against this amendment offered by the Senator from Wisconsin, though in my judgment it would do more than any other to heal the difficulties by which we are surrounded. A majority of those who will support the propositions on which we are to stand believe that the measure in the shape in which it is before us is the wisest, and I am bound on that question to defer my own opinion to that majority who differ from me in order to secure the passage of this resolution. I am the more reconciled to this course because next to the proposition now submitted I think the present is the best that has ever been offered. Next to the simple, plain proposition of basing representation upon voters, the section before us is the best. It does recognize the equity of the rule I have mentioned. It bases representation upon population, and it excludes representation for a class of people that have no political power; but it stops short of the logical sequence of the principle. It endeavors to save representation for certain portions of our country where they have a population whom they deprive of the right to vote; but it deprives the South of representation for a population which has no right to vote. It is therefore to some extent unjust, and yet it is more just than any other proposition which has been submitted to us. For instance, the proposition which I voted for some two or three months ago, reported by the committee on reconstruction, proposed that if the South excluded any portion of the negro population from voting the effect should be to exclude the whole mass of that population from representation. This proposition is better than that. It is indeed better than any other except the simple, logical proposition of basing representation upon voters. While I do not and cannot surrender my individual opinion on this subject, I shall vote against the amendment of the Senator from Wisconsin simply because it is necessary to have an end to this controversy, and those who are expected to carry these propositions before the people must agree upon some platform, and I choose to stand by that which has been agreed upon by those who are expected to vote for some amendments to the Constitution. All those who believe that amendments ought to be adopted must confer among themselves and get the best proposition upon which they can agree, and then they must abide by it and stand by it. Although my friend from Indiana [Mr. HENDRICKS] may say that that is the result of a caucus, let me tell him that he has submitted to such a result a hundred times, and would do it again. I would always rather submit to the deliberate judgment of a majority of those with whom I act than to seek the aid of my political opponents, uniting with a minority of my friends to make a platform that nobody would be satisfied with. Mr. WILSON. After the remarks made by the Senator from Ohio I desire to say simply that I regard this amendment as a proposition to strike from the basis of representation two million one hundred thousand unnaturalized 1866 THE CONGRESSIONAL GLOBE 2987 foreigners in the old free States, for whom we are now entitled to seventeen Representatives in the other House, and it weakens that part of the country that much. That is all there is in it. It is simply a blow which strikes the two million one hundred thousand unnaturalized foreigners who are now counted in the basis of representation from that basis, and takes the Representatives for that population from the loyal portion of the country for the benefit of the other end of the country that has been disloyal. That is the proposition, and I shall vote against it. Mr. SHERMAN. I think that a remark only is necessary in reply to that. The two million of unnaturalized foreign population alluded to by the Senator is somewhat an over-estimate. But take it at two millions; how long are they excluded? Only during a short period of probation — five years; and in most of the States the great body

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of them are promptly admitted to citizenship. Mr. President, I ask you whether it is not just that those people who are denied political power should be excluded from the basis of representation. If it is right to exclude four million blacks in the southern States who are denied representation, is it not also right to exclude all other classes in every other State who are denied political power? We cannot go before the people of the United States and argue the question as it affects this State or that State, this community or that community. The amendment to the Constitution which we propose we must settle upon some fundamental principle — not judge by the way it will operate upon this community or that community, but as it operates on the whole mass of the community at large. Now, I say that it is not unjust to exclude the communities in which two million foreigners in the process of naturalization live from exercising political power for them. As soon as our laws allow them to exercise political power for themselves they will become citizens, and they will vote; but the very same reason which excludes the four million colored population in the southern States who are denied by their laws all political power would exclude temporarily, during the short period of probation, the foreign population who are unnaturalized. But it must be remembered by my friend from Massachusetts that the great body of unnaturalized foreigners are women and children. Nearly all the men who come to this country are naturalized in five years. The exceptions are very rare. In an agricultural community like the West all foreigners are naturalized in a short period of time, except in some States where the policy of their laws is to prevent them from being naturalized by allowing them to vote without being naturalized. The most of the unnaturalized people in this country are women and children. Nearly all the men who have lived here five years have votes. The objection the Senator now makes, that two million foreigners would be unrepresented, disappears in 1870, because by that time all who have been in this country during the requisite period would undoubtedly be naturalized, and they would then be counted. Mr. GRIMES. Others take their places. Mr. SHERMAN. They are coming in. But ought they to be counted until we intrust them with political power? The Senator from Massachusetts has no more right to vote for a foreigner whom the laws of the United States declare to be unfit to vote for himself than I have, merely because he lives in Massachusetts. It seems to me that is not a fair argument. Another argument has been often drawn into this discussion. I do not know that it is worth while for me to continue the discussion, because as I feel bound by the action of my friends I shall vote against this amendment. But there is another argument. It is said that the young and active men of all the eastern States, including Ohio, which now sends more abroad than it receives, emigrate westward, leaving their families behind them, and that it is unjust to deprive those families of political representation. So it would be taking a superficial view, but you must remember that these young men who go West themselves represent their families, and that they bring the principles in which they were taught back into this body and into the other House. They exercise political power for their families when they go to the West. The West gives these emigrants office, honor, position. Should not the West count for that? When a young man goes from Massachusetts to Minnesota, ought not Minnesota to have the benefit of his political power in her count of representation, when she gives him office and honor and power and patronage? Undoubtedly. Wherever the man votes there he ought to be counted; and if he leaves behind those who do not vote they ought not to be counted. He ought to be counted where he exercises his political power, so that a man in one State may be the same in every State, having the same political power. But I will not discuss this matter farther. Mr. COWAN. Mr. President, I have a word to say. I am not exactly in the category of my honorable friend from Ohio. I do not wear the harness of caucus on this occasion, or indeed upon any other. I am opposed to any alteration of the Constitution in this point, because to me that is vital. But I am going to vote for the proposition of the Senator from Wisconsin because I think it better than the original proposition and not worse. It does seem to me there are most extraordinary notions of political power here, what constitutes it, where it is vested, and how it is wielded. What conceivable difference can it make to a citizen of Pennsylvania as to how Ohio distributes her political power? What conceivable interest has the honorable Senator from Ohio; or a Senator from any other State, to say to us whom we shall allow to vote and whom we shall not allow? They do not pretend that they have a right to say to us whom we shall elect and whom we shall not elect; and is not the elector just as much the choice of the community as an officer is the choice of it, except that the electors are chosen by a class and described by a general designation, whereas the officer is chosen by name to perform certain functions? Mr. President, to touch, to venture upon that ground is to revolutionize the whole frame and texture of the system of our Government; to turn it over: to violate our own canons. What is the guarantee of the United States to the several States? It is that they shall have a republican form of government. Now we are told that a republican

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form of government is this, that, and the other. One man says it is "universal suffrage;" another man says it is "universal manhood suffrage," so as to throw out the ladies; another say's it is "universal white suffrage" and so on. Who can agree as to what a republican form of government Is? If gentlemen had read the original text and the approved commentaries thereon they would have found that the guarantee was such a form of government as the State itself should make. The State is the judge of the republican form of government, and not the citizens of the other States. Then, if a State has the right to form its own government, and that is the republican form, by what right can one of the other States, or two of them, or ten of them, or three fourths of them, if you please, venture to introduce into the State a power from without in order to control its distribution of political power? If the effect of any such extra action upon a State would be to deprive it of a portion of its weight in the Union, that is a violation of the original compact; it is a violation of the very instrument upon which the Union was formed; it is putting the torch to the very fabric you wish to preserve; it is putting a mine under the very building you wish to secure. Are you to preserve these States if you are to regulate the weight hereafter that they are to have in the Union? Can half a dozen or a dozen or two dozen of these States undertake to shear of their political power the other States? Can you violate your own guarantee? When you say that nobody else shall deprive these States of the right of making their own government and distributing their own power as they please, can you do it? Can the guarantor himself with impunity violate his own guarantee? Mr. President, I had intended to make some more extended remarks on this topic; and as I am on the floor now I may just as well say at this time what I have to say on the general subject. It is perfectly clear, I should think, to all wise people that the basis of representation, or the measure of political power and that which adjusts it among the States, should be something fixed, certain, determined. You cannot make a flexible standard. You cannot make a standard that is thirty-three inches to-day and thirty-six to-morrow, and the next day forty. You cannot allow a State to open and shut her valves and admit power or expel it at will. You propose to say that if she does not do certain things she shall not have but a certain amount of power. Suppose she wants power. She is made the arbiter of the power she shall have in the Union. Suppose she chooses to exclude it again, what then? Here we have a constantly shifting panorama upon which I do not see how it is possible that an apportionment bill can be framed. Population, however, is certain, fixed, determinate, a thing to he counted every ten years. and a thing to be encouraged, because if you make population the basis of representation then you encourage population; but if you make voting the basis, or if you make that the measure, then you encourage the degradation of the franchise. I am willing, on the part of my own State, that she shall be the guardian of the franchise within her limits. The people of our State are to be the judges of the persons in our society who are fit and proper to cast our ballots; and we are perfectly willing that all other States shall enjoy that privilege, because we believe that it is an inherent and essential privilege in every State. But what will be the result upon us of the proposition before the Senate? We have in Pennsylvania about one hundred thousand negroes, and we have a Representative in Congress based upon them. What is to be the operation of this amendment? Just this: your whip is held over Pennsylvania, and you say to her that, she must either allow her negroes to vote or have one member of Congress less. That is it; and it comes with very bad grace from a parcel of people who have no negroes among them; and that I think is the worst feature in all this business from one end of it, to the other. Here are a parcel of States who have no negro population, and they are exceedingly anxious that the people who have then should let them vote. What is that their business'? We have never known that they invited them that they might get votes. The negro is now as free to go to Massachusetts or to any State where he is allowed to vote as he is to stay in Pennsylvania or anywhere else. If he insists upon this privilege, he has the same right to go after it that I have, or any other man has, and he can go and get it. if I do not like the laws of Pennsylvania and they do not suit me, and I have not power and influence enough in the State to mold them to suit my particular desire, I can go to another State and another until I suit myself. But why people who are not interested in this thing, who have everything to gain and nothing to lose by it, can expect to maintain the Union by insisting upon propositions of this kind I confess is more than I can see. This is not common justice in a common, ordinary transaction; and I do not know whether it would be considered fair even in a horse trade. The advantage is all on one side. It is like the Indian and the white man dividing the possum and the turkey. The white man said to the Indian, "Now you take the possum and I take the turkey, or if you do not like that, I will take the turkey and you take the possum." [Laughter.] "Why," said the Indian,

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2988 THE CONGRESSIONAL GLOBE June 6, you have not said turkey to me once;" and that is the way with this constitutional amendment. The States that have no negroes are to shear the States that have negroes of the political power they have according to the fundamental law, according to the ancient bargain made, and according to which the Union exists, and which is in fact itself the Union; that bargain which is bathed in the blood of two hundred thousand American soldiers, for which we have sacrificed six or eight thousand million dollars; that bargain now is to be amended in its essentials, and to be amended for the benefit of one section of the Union who have everything to gain by it and nothing to lose, and to the prejudice of the residue. Mr. President, will the man who knows the value of this Union to these States, the man who loves it, who reveres it, and who believes that it will make his country the greatest republic on earth — will he be guilty of unfairness? And, sir, what is worse about it all, those States which are to suffer most, and the States within which it is to operate most hardly, are not heard; they are not allowed to come upon this floor and argue their case although this is a free country with a representative form of government, and, as I supposed, a republican form. Mr. President, I consider this attempt as dangerous to the peace of the Union as the original doctrine of secession. Do gentlemen suppose that the people of the States affected will submit to this? Let me remind gentlemen of another thing. The Republican party existed over half the Union. It existed as a party north of Mason and Dixon's line. It was a minority party. When Mr. Lincoln was elected in 1860 there was a majority on the popular vote of more than nine hundred and thirty thousand against him. He was elected under the forms of the Constitution, and was really and lawfully the President of the United States; but under the workings of the Constitution it did so happen that there was that majority against him. In the States north of Mason and Dixon's line the majority for Mr. Lincoln, at the last presidential election, was about four hundred thousand, I believe. At any rate, nobody can deny but that very nearly one half of the people of the North belong to the Democratic party. There, too, I suppose, you may consider that the people of the South now belong, because your destinies are in their hands. They will inevitably sit in judgment upon you here in this Chamber. They will mete out to you, if you are not careful, the same measure you try to mete out to them. Now, I warn my fellow-Senators that we cannot afford this with this form of government of ours. Had we not better stand upon the Constitution as it is, where our fathers put it, that Constitution which we enforced at such cost? Think of partners after a difficulty, one partner trying to compel, and to compel under threats, the insertion of a new clause into the original articles of partnership. But can we compel it; and if we cannot compel it, what then? You know what it cost us to compel obedience to the Constitution as it is. You cannot compel obedience to the Constitution as it is not. You could compel obedience to a Constitution that was the law of the land, but you cannot compel obedience to a Constitution that is not the law of the land. Mr. President, I am for dealing fairly. In the first place, as I have said before on this floor, I trust the American people everywhere. Why? I trust them because they are the foundation upon which this structure is built; and to say that they are to be punished into the proper shape or driven into the proper shape is to say that the whole rests upon a quicksand, rests upon a foundation which is distrusted, which begins to show cracks in the walls already if these things be true. I trust the people. I trust the people North. I trust the people South. I trust the people of all parties. Why not? Why is it that the South will sustain the Union now? Because it is her interest to sustain it. Why is it that we sustain it? Is it because we arrogate to ourselves superior virtue? Has the grace of God been more liberally bestowed upon us than on our brethren? Is that the pretense? We may be wiser, but surely I think nobody can say of the people or any part of the people that we are more honest. Trusting the people, then, the people must be trusted everywhere, and what we do especially must be fair. It is a characteristic of our race, and one which has marked it for long ages, that there must be fair play. No man of our race will interfere even in his brother's quarrel in a fair contest. We must play fair. What have we been playing for? We have been playing for the Union and for the Constitution. What is the attempt now after we have won? It is to say that we will have neither except upon terms. Terms with whom? Terms with the very men we have been struggling with for years in order to compel them to assent to our terms —t he Constitution and the Union. I say again that we must be fair; we must allow to the States the rights which they reserved to themselves when they made this compact, and especially must we allow to them the essential rights, the rights that underlie the whole fabric, that are the basis of the whole structure, the first of which is the right to regulate their own domestic concerns. Have we forgotten our own platform? Let gentlemen who talk about party fidelity recur to the platform of Chicago in 1860; recur, if you please, to your Baltimore platform of 1864; and then you will see who are faithful to the original doctrines of the party and who are not. Shall we undertake now to say that we will regulate the ballot all over the United States, remodel the whole affair, redistribute the political power, and we do

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this right in the face of our own law? Who passed the act of the 4th of March, 1862? Who voted for it in this Chamber and in the other? Nobody gainsaid it; nobody thought of gainsaying it. And yet that law in force today is violated, trampled under foot and disregarded. By whom? By us. We who fought for the Constitution and for the law; we who proclaimed ourselves those who would see it enforced at all hazards violate it; we, in the face of our own law, today refuse to hear the people we are legislating for upon our floors. That law gives to the southern States, eleven of them, I believe fifty-eight members, and they have not one, and you have not the poor apology that is stuck into this amendment to the Constitution here, that these members engaged in rebellion, because the fact is that a great many of them did not; a great many of them engaged to suppress it; some of them shed their blood in that attempt, and some of them struggled through all manner of difficulties to be true and faithful, and yet they are excluded; they are not allowed to say a word here for their fellow-citizens. And this is fair! This is the way to deal with a partner! This the way to deal with men with whom you expect to live in peace and unity coming centuries! What is it all about? Where is the difficulty about it? Are they stronger than you? Are you afraid in the other House, with one hundred and eighty-three members now, that you cannot manage fifty-eight? Are we afraid here with fifty Senators that we cannot manage twenty-two ? Mr. President, the disguise which covers this proposition is too transparent. As I said before, the Republican party was a minority party. Its policy immediately upon attaining to power was to make itself a national party was to throw out its lines and set its stakes in every quarter of the Union. Let it penetrate every hamlet from Maine to Georgia, from North Carolina to California. Let a network of both parties ramify everywhere, spread over the country, and then you may have a Union; and I may remark that the binding efficacy, the cement of the two parties interwoven like a network over the whole country, will contribute a hundred times more to keep it together than any other device, or even the Constitution itself. When this was violated, what was the consequence? When there ceased to be two parties all over the country, all over the length and breadth of it, what had you then? Rebellion; and rebellion will follow it inevitably, not only now, but in all time to come. Strike a line north of Pennsylvania and elect a President against the will of everybody north of the north line of Pennsylvania; or, in other words, go into an election and beat every man north of that line, and a rebellion is inevitable. You have the same difficulty then that we encountered in 1860. The election of Mr. Lincoln beat every man south of Mason and Dixon's line, or very nearly so. All parties and all factions were opposed to him. All had pledged themselves against him, and after the campaign waxed hot and the blood boiled, they had pledged themselves to resist; they were bound before the crisis came, and how could they prevent it? Thousands no doubt regretted it, but their lips were sealed. Thousands were unwilling to act, but still, under the influence of this mortification, they did act. It is a mortification, you observe, that reaches everybody; it reaches men, women, and children; it goes everywhere, and however trifling it may appear to a wise man and a cool man, yet it affects the people, and affects them in a most tender and vital point, and they resent it. They did resent it. I say again, that if under the same circumstances a candidate was to be elected who would beat all New England and New York, they would not submit, in my judgment. Then I say it was the business of the Republican party to extend itself upon some common platform, not the platform of fairness exactly in the distribution of political power, because the Constitution was not based upon fairness in that respect. There was nothing fair in the provision that Rhode Island and Delaware should each have two Senators, and Pennsylvania and New York each only two. It was not built upon the principle of equality originally. Still we ought to stand upon it and maintain it; and in order to do that there should have been no going away from the original doctrine. We should have stood upon it and strictly and literally enforced it, and we should have had a right to enforce it, and could have enforced it in the face of the civilized world and had the civilized world with us. But that opportunity was neglected; the Republican party did not do that; and then it was driven to the miserable shift of either taking, to itself as allies the negroes of the South, or what? Depriving the South of the political power which she enjoyed by virtue of the negroes. Do you think the world does not understand this? Do you think the people do not understand why this is? Do you think you can delude the people with the idea that this is honest on our part; that it is fair on our part, and that that is what we really mean? I tell gentlemen that if they think so they are mistaken. The people understand this exactly. Do you believe the people want, the mass of the Republican party want, such allies as those in the South? Do you believe they want to rely upon the aid they can get from negro suffrage in the South to hold the balance of power in this Republic? Go to Pennsylvania, go to Illinois, and ask them. When Pennsylvania, with her hundred thousand negroes, refuses them suffrage, why is it? And if she refuses to allow you to intermeddle with it, why is it? Do you pretend that you are improving the suffrage, do you pretend that you are making the institutions of the country more secure when you insist upon this? Who does so in the face of the civilized world? Are you bringing into the councils of the country more

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wisdom, more independence, more virtue? Nobody pretends it. Do you allow negroes to vote yourselves? You allow it partially in New York — a kind of emasculated suffrage there; you allow it partially in Massachusetts; absolutely nowhere; and yet you stand here and crack your whip over the head of the southern States who have millions of negroes in them, and you say they must let theirs vote when you will not let yours. 1866 THE CONGRESSIONAL GLOBE 2989 Mr. WILSON. They have the right of voting, absolutely, in Massachusetts.. Mr. COWAN. "Absolutely" if they can read the Constitution. Mr. WILSON. The same as white men. Mr. COWAN. Then it is not absolute even for a white man. That is the liberality of the reformers of the present age. After all this talk of political power and how it ought to be divided among men, how every man great and small, wise and foolish, should have his share of it, a poor devil who cannot write has none at all in Massachusetts. The honorable Senator from Ohio ought to have been reminded of that. Mr. ANTHONY. Colored men vote in our State on the same terms with white people. Mr. COWAN. Exactly. You put your restraints not only upon negroes but upon whites; but where is the restraint to be put on the people down South? You do not put any limitation there. You do not say to them, "If you let the literary negroes vote you may have all represented." Mr. MORRILL. Suffrage is absolute in my State — unlimited I may say. Mr. COWAN. I congratulate the honorable Senator upon it; and now all I wish is that he would go down to the Freedmen's Bureau — I believe the transportation is free — and ship up a hundred thousand negroes to Maine; take a hundred thousand of them there; I have no doubt they would be well treated. Then these philanthropic people would have an opportunity to exercise their skill. They would have an opportunity there to educate them and develop them, and they would see after awhile exactly what they could get out of them. If that were done, I could understand the philosophy of a movement like this. I believe I should agree to almost any new proposition if sufficient evidence was given to me that the people who urged it were honest in their designs, and had not some covert advantage which they expected lurking behind it. If Massachusetts had as many negroes as South Carolina, I could well understand her advocacy of this as being from the purest motives; but when I find her saying, "You take the possum and I will take the turkey, or I will take the turkey and you take the possum," I do not understand that kind of talk to be fair. And, Mr. President, I am opposed on principle to meddling with this matter. I am opposed to it again on the ground that to me it looks to be unjust, unfair, taking an unfair advantage of people at an improper time. Is this a time to amend the Constitution? I ask honorable Senators if in their opinion this is a time when the Constitution can be amended well and properly, because, as I understand it, if we are to amend the Constitution we must amend it in such a way as to be satisfactory to the people everywhere, not merely the people of Massachusetts or the people of Michigan, but to the people of Georgia and the people of Louisiana, to the people of all the States. Does any man want an amendment to the Constitution forced through here under circumstances of this kind, against people who are unable to resist, against people whom you will not hear, and in the face of a numerical majority in the country against you? Do you suppose that is going to be beneficial? I ask in all sober earnestness, is there anybody who supposes that that will be for the benefit of the country? Again, suppose you pass this amendment to the Constitution, and suppose the southern States either for the purpose of getting themselves into line with you or for the purpose of increasing their political power under it, should admit the negro to the franchise, will your children and your homes and your governments be the more secure for that? What is the difficulty under which you labor today? Is it that you have not voters enough? Is it that the food upon which the demagogue fattens has grown scarce and he has grown thin? Or is it the reverse? Is it not because demagoguism is rife everywhere; and is not demagoguism rife just in proportion as you furnish it the material upon which to work? Degrade your franchise, put it down in the hands of men who have no intelligence, no virtue, and, what is worst of all, no independence — put it into the hands of men who have nothing to hope from it except in so far as they can use it for corrupt purposes, and shall we be safer then, I ask? Do you suppose that the people of the States in which there are negroes will send you more intelligent, more learned, more virtuous, and more independent Senators and Representatives here if you make this change than they would without? Mr. WILSON. They will send more loyal men. Mr. COWAN. "Loyal." What is "loyal?" I ask Massachusetts what is ''loyal?'' What is the meaning of the word? A fellow that votes with you! That is like the chap defining "orthodox"—"orthodox is the way I believe;

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heterodox is the way the other man believes." "Loyal" means an abolitionist, I suppose. At least I find that everybody who does not happen to be an abolitionist or tarred with that stick, is said to be disloyal. Loyalty, Mr. President, is a very simple word. Loyalty means obedience to the laws. It means legality. Legalis meant law as well as lex meant it. When a man alleges his loyalty to me, let me see his reverence for the Constitution and the laws. Show me a man who disregards either; show me a man who does not believe in the Constitution which brought this country to such a pitch of prosperity for seventy-five years and made us so great and so happy a people; show me a man that lays sacrilegious hands upon that instrument, especially when I know that half the time he does not understand it and that he never read a commentary upon it in his life; show me that man, and I show you one who is not loyal. Show me a man who for a temporary advantage, either for himself or his party, would set a foot upon one of his country's laws, and he is not loyal. It is time we were beginning to understand the meaning of words in this country. It is time, now that the war is over, when passion has subsided and when reason ought to come back and resume her throne, that we ourselves should be reasonable. Let us look at this in the light of the past; let us look at it calmly and coolly as we survey it in bygone thousands of years, not as it looks to the eye blood-shot with passion, red with a rage that is hardly dying out. Let the lower stock indulge in passion if it is to be indulged in; but here in this the highest forum of the nation; here where, if anywhere, there should be justice and fairness, and that broad view over the whole country which takes it all in and which considers all the people as the people, virtuous, intelligent, independent enough to govern the country; let us here be reasonable, and especially let us know the meaning of our words. Mr. President, I have another objection to this measure, and that is to that section which imposes a punishment upon people who have not been heard and who have not been tried and who have not been convicted according to law. If there is one thing above every other thing necessary to the maintenance of personal liberty — I mean your liberty, my liberty, and the liberty of every man, great and small, noble and ignoble — it is that no man shall be condemned until he is heard. Who could have dreamed that men educated as we have been, impregnated as we ought to be with the love of English literature, English law, and English history, could stand here for one moment and sanction a proposition of this kind, and particularly when we look back and see the consequences which fell upon them from their bills of attainder; and their bills of attainder were — well, I was going to say they were right compared to this, but that is not the word; they were not the one thousandth part as reprehensible as this, because when they undertook to inflict punishment through the medium of the Legislature, they took the criminal and named him by name; they described him, so that, he could be known; they did not attempt to throw a dragnet over the whole country and to sweep in thousands of people and ostracize them, or punish them, make them eternal enemies. Mr. President, if I wanted to sow the seeds of another rebellion, if I wanted to plant that fatal upas in this country, I would do it by means of just such a clause as that which deprives all men of the right to hold office who ever took an oath to support the Constitution of the United States, and that without hearing them, without inquiring how they engaged in the rebellion, whether they were commanded in by a superior authority that they could not resist, whether they were forced in by actual physical force, whether they were deluded in, or how they got in. What, sir, punish such people! I have no word that will convey my sense of the impropriety and impolicy, to say no worse, of such a provision as that. When I reflect upon the conduct of this Government toward those men at the very time when it should have been on the ground to rescue them, I am more and more astonished at our own folly in uttering a word upon such a subject. They owed allegiance to this Government. Did it owe them nothing? It owed them protection. Did it protect them? What did it do? Many of the Senators within the sound of my voice know that on the 4th day of March, 1861, when we came here, the United States, the great protector of the people, the sovereign authority of the land, that to which they all looked, and had a right to look, to preserve them their freedom of opinion at least upon subjects of this kind — that Government was that day ignominiously out of possession of seven States of the Union; had its feet on but two points in those States, I believe, Pickens and Sumter. Those were the only two points in the seven States that were held; and held how? So far from being able to protect the people, those places were scarcely able to protect themselves, and Sumter certainly was not. Did we go to the rescue? Did the Government go and fulfill its part of the contract? Did it give them protection? History answers. No, sir, they were allowed to be driven into that vortex of rebellion, nobody to stand between them and the current that was sweeping everything with it. They were in, and now, because they were in and because they were in on account of the neglect of this Government to give them the protection they deserved, they are to be punished. It is time we looked at it. Why should we not look at it? Are we afraid to look it in the face? Are we afraid to do right? Can we not now "be just and fear not?"

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Mr. President, let me suppose a case. An old man lives in the South, an old Whig if you please, struggling for the last thirty years against secession, fighting it in all its shapes from nullification down, voting for Bell and Everett, if you please, in 1860, or voting for Mr. Douglas, because I suppose that everybody admits that those who then voted for those men were not disunionists, were not secessionists. That old man sits there surrounded by his family and surrounded by his slaves; slaves that were born beside him, slaves perhaps that his own mother nursed when she nursed him; slaves that he loved; slaves that he was kind to, and slaves that today would go to him for a favor perhaps far sooner than to anybody else. There he is, surrounded by his sons and his daughters. In December, 1860, a messenger comes in, a son, if you please, and he says, "Father, the State has seceded." "The State seceded! What! Gone out of the Union! Oh, we'll see about that. Where is the United States? Where are the United States officers'? We shall have a halter about these fellows' necks before they know what they are doing. Seceded! Gone out of the Union! We'll see about that." The old fellow bustles about, and while he is bustling about another son comes in and says, "They have taken all the forts except Sumter, and all the United States officers are out of commission, every one; those 2990 THE CONGRESSIONAL GLOBE June 6, that were true were frightened, and those who did not want to give up their offices have been threatened, and they have all resigned; there is no United States officer in South Carolina." What then? Where is your Government there to protect this man? He may have been a member of your Congress. He may have taken an oath to support the Constitution twenty times. He may have been a member of this body. What is he told? Where is he to go? He says, "I will see about this." He is an active, vigorous, energetic man, and he comes up here to Congress, and he finds Congress sitting at this end of the avenue, he finds the President sitting at the other end, and he tells them "South Carolina has seceded; you are out of possession; you cannot protect anybody; the whole people there are at the mercy of these secessionists. What are you going to do?" What did you do at either end of the avenue? Mr. HOWARD. Ask Mr. Buchanan. Mr. COWAN. Yes, and ask that Congress that sat here, too ask that Congress did it pass any bill to authorize him to put down the insurrection; did it make any provision? The history of that Congress is written. "Well," the old man says, "I cannot do any good here; these people seem to be all demented; they have forgotten what the Government was organized for; they have forgotten its mission. They seem to think it has no function, that it is to remain seated here and do nothing, and that the people will still maintain their allegiance to it as against State governments and confederate governments; however, this wilt be all right yet." He goes down home and tells the boys and everybody that things will be better after a little; that there is a new President coming in; that Congress and the old President are fighting and have got to loggerheads; one will not do this and the other will not do that, and both are waiting for some new advent. The 4th of March comes round. What is done then? The new President finds himself here without an army, without a navy, without a treasury, everything demoralized, everything at sixes and sevens, and for six weeks neither he nor his Cabinet knew what to do. What is the old man to do in the mean time? The stern old patriot, good Union man, says, "Never mind; things will come right yet; after awhile these people at the North will get started and then we will be set all right; the traitors will be punished and we shall be protected." In the meanwhile one of the boys comes in and says, "Father, 1 have got tired of being called a traitor; I cannot stand it any longer; my neighbors are joining companies and regiments; and I am sometimes actually in danger of being mobbed when I go out; here are Vigilance Committees and Precipitators and Knights of the Golden Circle, and it is hardly safe for a man to go out; but they have offered to make me colonel if I will take command of a regiment. I do not see that we have any hope at all; Mr. Lincoln is not going to do any bettor than Mr. Buchanan; here we have waited a whole month and he has not done a thing; there have been no supplies thrown into Sumter, no troops sent there, no strengthening of that post; this is a foregone conclusion; can we look any longer to the Federal Government? Four months have already passed; I guess I'll take the colonelcy." The old man says, "I do not like that, but I do not see very well what else you are to do; if this thing shall succeed and you are not in it, of course you will be damned forever and spotted as a Tory down to the latest generation, perhaps; I guess you had better go in." John goes in and takes a colonelcy; Jim goes in and is made a major, and Ben is made a captain, and so on; and about the time that is done they fire on Sumter and the North is on fire. Armies are in motion to go down and rescue these men after they have been in the toils. Well, let us follow it a little further. Before our armies get within one hundred miles of this old man to protect him, to stand between him and the secessionists, he finds posted up on the wall a proclamation. What is that proclamation? Why that he is a sinner, a man who has violated a great moral law of God in the universe in owning

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slaves, and that his slaves that he owned, that he looked upon as his property, that he believed were his property, that had come to him from his father, if you please, were freed. "Now," says he, "that may be; but I always thought that when a man committed a sin he ought to know it. I do not understand slavery to be a sin in itself. My father did not teach me so; my mother did not teach me so; the church did not teach me so; our people all around here did not believe so. Our people thought slavery in itself was indifferent; that if a master took a hundred negroes and made them happier than they were before, wiser than before, better than before, it was a virtue, and if he took them and made them worse it was a sin; and who dares tell me that I have been a sinner in this behalf? And what kind of protection is this that a Government is to afford me to allow the country to be covered with war and desolation for months on account of its neglect at the outstart, and then after doing all this I am to be told, true as I have been to the Constitution and the laws and the flag, that I am a sinner and to be bereft of my property? However, perhaps this is after all right this is a great Union and a great country, and we can afford great sacrifices for it, and I will submit to this and be a Union man still." Then after war is over, after peace has come back, his sons are disfranchised, or rendered ineligible to office; every kind of ignominy is heaped upon him and upon them; they are punished without being tried, they are convicted without being heard; their apologies are not considered; they are not considered in court; they are not considered in the legislative hall; this old man is not allowed the poor privilege of a Friend from his district to come here and offer the little apologies he may have for himself and his children. That is an American citizen, a true man, a Union man; and this is the way we legislate for our fellow-citizens! This is the cement with which we propose to bind this Union again! This is the way we expect to extend the hand of fellowship to the Union men of the South! This is the thing we expect will secure to our children and to our children's children a future for the great Republic. Think of it! I hear gentlemen taking airings in history; we were treated to a dish of it this morning. I would advise gentlemen to read Prendergast's History of the Cromwellian Settlement in Ireland. Read the Partition of Poland. Read the suppression of all rebellions, and read where this operation has been performed successfully of putting down a rebellion and healing the wounds caused by it, and ask whether this is part of the machinery that was resorted to there. Go to Roman history; read it from end to end, and see whether when they conquered a people whom they wished to unite to themselves they imposed conditions, whether they said, "You must do this and you must do that, you mast pass under the yoke." Never, never. If the Romans intended that a conquered people should live with them they made them their equals immediately; they gave them all the rights of Roman citizens; and what was their argument? "They will love us the better the better we treat them, and they will hate us the worse the worse we treat them." Then, Mr. President, there is a fundamental principle, a principle fundamental in the hearts of Englishmen, I hope, and their descendants; fundamental in our history, fundamental in our traditions, fundamental in our beliefs, fundamental as our religion; it is that no man is to be convicted without being heard. How can you tell what a man has to say who was engaged in the rebellion? You refused to put the word "voluntarily" in. Do you propose to punish a man who was compelled to commit a crime involuntarily? And yet you do if he engaged in the rebellion. Gentlemen tell us it is no punishment to say that a man shall have no voice and shall not be eligible to office. That might do to tell some of the verdant, virtuous districts out through the country, but it is a very singular speech here in the United States Senate, composed of forty or fifty men who have been all their lives struggling for offices, and have got very high ones at last. No punishment to say that a man shall not be elected to office! What kind of ideas of punishment must some people have? Do they think that punishment consists alone in pulling teeth or smashing thumbs in the thumb-screw, or putting boots on the leg? Is that the only kind of punishment you can inflict on a man? Is there not such a thing as setting a mark upon him, the punishment of the first murderer, sending him out to wander through the world like the man in the novel who had no shadow? Is it no punishment to put a wolf's head of this kind upon a man, to single him out, set him apart in the community, and label him "traitor, ineligible?" Do you know any men of our breed on the earth that ever submitted to that long? I should like some gentleman to consult his history and find when and where men of our race submitted to that long. Mr. HOWARD. I refer the Senator to the Constitution of the United States, which declares that none but a natural-born citizen of the United States shall be elected President of the United States. That is one instance. Mr. COWAN. Oh, that is a capital joke, Mr. President. Now, we have been bamboozled and fed on that kind of stuff for the last four years. That is an answer to the argument! I ask the honorable Senator if he believes there is a sane man in the world who thinks that has anything to do with my argument. It has no more resemblance to the case I put than a hawk has to a hand-saw—not a bit. Because all the people who are not born in this country cannot be President they are punished! Is that so?

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Mr. HOWARD. I do not think so. Mr. COWAN. I do not think so either. Nobody believes that that is any punishment or any stigma or anything else upon those people; but if I were to select the honorable Senator from Michigan and say to him, by law or otherwise, "You shall not sit upon a jury; you shall not sit in the Legislature; you shall not wear the ermine of a judge; you shall not be Governor of your State or Senator from that State," I should like to know what he would think of that. What would he say to his wife and children in explanation of that? "How does it come that our father cannot be a judge, so good a lawyer as he is? How does it come that he cannot go to the Senate of the United States, eloquent and learned, as he is, and superior to the men whom we are obliged to send?" What would be his answer? "My children, I have committed no crime; my name shall come down to you pure and unspotted as it did from my own father; but I am the victim of a law which condemned me without hearing me, convicted me without a trial, and punished me not even by name, but by class." I am reminded by my learned friend from Wisconsin [Mr. Doolittle] that we ourselves made that a part of the punishment of treason; and the honorable Senators who think this joke is an answer to a ponderous argument, that this quip and quirk is to stand in the face of a great fact covering eleven States of the Union, voted for it. We ourselves made it a part of the punishment of treason. It is in the book; I need not read it. That is a fact; and yet we are told this is no punishment. I ask again, and I defy gentlemen to put their finger upon a single instance where our race submitted to this, or submitted to it long. Impose that upon the southern States, pass this bill of attainder through the medium of an amendment to the Constitution, and the seeds of rebellion are there, and they will grow, and the feeling of this injustice will grow with it; and if redemption cannot come the children of the men you render ineligible to office in a very short time will themselves make a mighty army, an army not 1866 THE CONGRESSIONAL GLOBE 2991 to be conquered in a cause of that kind. No, Mr. President, let us treat these people fairly, let us give them their rights under the Constitution and the laws; and if they merit punishment, let us mete that punishment out to them by the law, not by bills of attainder or ex post facto laws, not by making a law as amendments to the Constitution. If we can maintain the Union at all, we can maintain it in that way. If we cannot maintain it in that way we cannot maintain it at all. I am aware, Mr. President, that this is a foregone conclusion. I am aware that it was decided that something must be done, and I know how difficult it was to get that something into being, to get that unlicked bantling into shape. I know how long the period of parturition has lasted. And, Mr. President, I am afraid, too, that if it had not been from pride of preconceived opinions it would have been strangled by its own mother at the instant of its birth. I believe she would have been glad to get rid of it if it had not been for that pride. But it is here, it is to go through, it is to be proposed to the people; but relying upon the people, upon the sense of the people, I have no fears for the result. The PRESIDING OFFICER. The question is on the amendment of the Senator from Wisconsin, [Mr. DOOLITTLE.] Mr. VAN WINKLE. I desire to say that my colleague [Mr. WILLEY] has been called away for this afternoon. The question being taken by yeas and nays, resulted — yeas 7, nays 31; as follows: YEAS—Messrs. Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, and Riddle—7. NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Edmunds, Fessenden, Foster, Grimes, Harris. Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Norton, Nye, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Williams, Wilson, and Yates—31. ABSENT—Messrs. Brown, Buckalew, Creswell, Dixon, Henderson, McDougall, Nesmith, Poland, Saulsbury, Willey, and Wright—11. So the amendment was rejected. Mr. WILLIAMS. Mr. President— Mr. DOOLITTLE. Before the Senator from Oregon proceeds to offer any amendment I desire to offer one further amendment. Mr. WILLIAMS. The Senator will excuse me. Mr. DOOLITTLE. Does the Senator offer an amendment in behalf of the committee? I supposed the committee's amendments were through with. I had two or three amendments I desired to offer. Mr. WILLIAMS. I beg to be excused from yielding the floor. I move to strike out the second section and substitute these words for it: Representatives shall be apportioned among the several States according to their respective numbers,

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counting the whole number of persons in each State, excluding Indians not taxed. But whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Mr. SHERMAN. I should like to have that printed. Mr. CLARK. It is merely in a better form. Mr. SHERMAN. I should like to have the opportunity of seeing it in print. Mr. HOWARD. I can assure the honorable Senator from Ohio that the amendment offered by the Senator from Oregon does not vary in effect the second section. It is a more condensed form in which the ideas contained in that section are expressed, but I am not aware that it changes the meaning and legal effect of the section at all. I hope, therefore, it will be adopted as it has been very carefully and thoroughly considered. Mr. JOHNSON. So was the clause as it stands carefully considered. I ask for the reading of that amendment again. The Secretary again read the amendment. Mr. JOHNSON. I should like my friend from Oregon to state in what the amendment differs from the section as it stands. Mr. WILLIAMS. I will state that in substance and effect it is the same as the original section; but the words "the right to vote " are substituted for the words "the elective franchise." It was suggested, with considerable force, that this section related to the apportionment of representation, and that the words "elective franchise" might be construed as exclusively applying to that subject, and that a State might claim that it was entitled to count persons as allowed to vote when it extended the elective franchise to such persons so far as the election of Representatives was concerned; and therefore the words "any election held under the Constitution and laws of the United States or of any State" were substituted so that electors could not be deprived of the right to vote at State elections. The object of the change in the phraseology is to require the State to allow those persons, before they can be counted in the basis of representation, to vote at elections held under the constitution and laws of the State as well as at elections held under the Constitution and laws of the United States; so that there is substantially no difference. There is a change in the phraseology; some of the sentences and words are transposed, the object being to make the section more clear and explicit and satisfactory than it was in the other phraseology. Mr. JOHNSON. Will the honorable member explain why it is that the words "which may be included within the Union," in the eighteenth line are omitted in the amendment? Mr. WILLIAMS. They were omitted for the sake of brevity and because they added nothing to the sense of the section. Mr. JOHNSON. That is the language of the original Constitution. Mr. WILLIAMS. That is true. At that time, when the Constitution was adopted, there were States that had not been admitted into the Union, States that might not ratify the Constitution, and those words were intended I suppose to apply to those States that might ratify the Constitution afterward. At this time these words are not supposed to be applicable, and certainly the Senator will not contend that the words in the proposed substitute are not as full and as complete as the words in the original section, and they are altogether more brief. That is the only reason why those words were omitted. Mr. HENDRICKS. I suppose it is desirable that we shall know what is in this amendment, and of course we could not understand its full force by merely hearing it read. I move that the Senate adjourn. It is past the usual hour of adjournment. Mr. DOOLITTLE. If the honorable Senator will allow me, I should like to submit amendments that I intend to propose, so that they may be printed also. Mr. HENDRICKS. Very well. Mr. DOOLITTLE. I desire to submit amendments to be printed. The PRESIDING OFFICER. The Senator from Wisconsin proposes an amendment which he intends to offer at another time, and asks to have it printed. The order to print will be made. Mr. DOOLITTLE. The effect of my proposition is that each of these sections shall he submitted as separate articles, to be passed upon severally. That is the effect of the amendment of which I now give notice. Mr. HENDRICKS. I move that the pending proposition be printed, and that the Senate adjourn. The PRESIDING OFFICER. The order to print will be made if there be no objection. The Senator from

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Indiana moves that the Senate do now adjourn. The motion was not agreed to, there being 10 in favor of the motion and 19 against it. Mr. HENDRICKS. I do not expect to vote for this proposition nor the one for which it is proposed as a substitute, but still I presume that even the minority have some little say and do about an amendment of the Constitution. Yesterday afternoon there was no press upon the Senate to stay here and consider this resolution. We adjourned at an early hour, when the Senator from Wisconsin [Mr. Howe] was making his speech, I believe about four o'clock. I suppose he was a little fatigued in making his speech, and some Senator proposed that we adjourn — I think it was the Senator who has charge of this measure — and there was no Senator who thought of questioning the propriety of the adjournment to accommodate the Senator from Wisconsin. Mr. HOWE. The adjournment was not at my request at all. Mr. HENDRICKS. By no means; but the Senator yielded that the motion might be made; no further business was transacted in open Senate; we went into executive session for a little bit. Now, there is a proposition simply that we adjourn that a very important amendment may be printed. I do not suppose it is the purpose to pass this measure tonight. I have not heard that expressed. I do not want to discuss it myself; but I should like to know what is in it before we vote on it. If it is better than the original, I want to vote for it; if it is not better, I do not want to vote for it as an amendment. I have a right to know what is in it because my judgment stands before the country upon the two propositions. This is an amendment to the caucus proposition, and I want to know whether it is better or worse. I have to give an intelligent vote on the subject, and I find it is impossible to know just what is in it by merely hearing it read. The language is changed materially. Mr. JOHNSON. I certainly have no desire to delay the action of the Senate if their minds are made up on the question; but I do not understand this amendment, and I have had it and the original section in my hand now for some three or four minutes; at least I do not understand it as I suppose it is understood by the gentleman who offers it. It appears to me to be obnoxious to this objection, and if it be liable to this objection I imagine that the Senators who are now apparently in favor of it will correct it in that particular. That part of the amendment to which I refer says that whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such States, being twenty-one years of age, &c., a deduction is to be made. Now, sir, in all the States — certainly in mine, and no doubt in all — there are local as contradistinguished from State elections. There are city elections, county elections, and district or borough elections; and those city and county and district elections are held under some law of the State in which the city or county or district or borough may be; and in those elections, according to the laws of the States, certain qualifications are prescribed, residence within the limits of the locality and a property qualification in some. Now, is it proposed to say that if every man in a State is not at liberty to vote at a city or a county or a borough election that is to affect the basis of representation? I submit to the friends of this measure, and I speak it, as I am sure the Senate will believe me, in all sincerity, when I say as it is all-important that the provision which we are about to adopt, or whatever we may adopt, shall be as certain as we can make it, that we had better print this amendment and bring to the consideration of it in the morning a better judgment than we may be able to form, at least than I am able to form, at this time. I move, therefore, that the amendment lie upon the table and be printed. Mr. MORRILL. A motion to print it has been agreed to. Mr. JOHNSON. No; the order to print has not been made. The PRESIDING OFFICER. It is not in order to move to lay the amendment upon the table. Mr. ANTHONY. That would carry the bill with it, as I understand. 2992 THE CONGRESSIONAL GLOBE June 6, Mr. JOHNSON. Then I move that the amendment be printed. That answers the same purpose The motion was agreed to. Mr. DOOLITTLE. I ask that the amendment which I proposed to submit be printed also. The PRESIDING OFFICER. The order to print has already been entered. M. HENDERSON. I am a friend of this measure, and I expect to vote for it and every one of these sections. I think, however, that at this hour of the evening the friends of the proposition ought not to insist upon a vote upon it. I have never seen this amendment before; I have not examined it; it is entirely new; and when the Senator from Oregon offered it I really did not know whether it came from himself or the committee. Certainly we do not desire to take from the opponents of this measure the opportunity of judging it and examining it, and much less can we wish to take from our own friends the opportunity of examining the principles contained in it. It is now five o'clock; it is the usual hour of adjournment.

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Mr. CLARK. Will the Senator allow me to offer an amendment before he moves an adjournment? Mr. HENDERSON. I will give way for a moment until you present it. Mr. CLARK. With the permission of the Senator from Missouri, if there is a disposition to adjourn, I wish to offer an amendment to strike out the fourth and fifth sections and to substitute what I send to the Chair, and I will state for the information of Senators that it is an amendment from the committee. I move that it be printed. The PRESIDING OFFICER. The order to print will be entered, if there be no objection. Mr. HENDERSON. Now I move that the Senate adjourn. Mr. ANTHONY. I hope that before we adjourn some understanding may be arrived at on both sides of the Chamber as to when we shall have a vote on this question. I think we should take advantage of the good feeling that is exhibited at present to come to some understanding on that point. Mr. HOWARD. I trust we shall stay here a little longer today and make some further progress in the discussion. There are several Senators on the other side of the Chamber who intend to speak to the measure which is now under consideration, and I am anxious to make all the progress that is possible today and tomorrow; and I wish it understood that so far as it depends on me I shall expect that the final vote will be taken at least on Friday. Mr. CLARK. Tomorrow. Mr. HOWARD. I say at least on Friday. Several Senators: Tomorrow. The PRESIDING OFFICER. The Senator from Missouri moves that the Senate do now adjourn. Mr. HOWARD. I hope we shall not adjourn. The motion was not agreed to; there being, on a division — ayes 11, noes 17. Mr. HENDRICKS. Mr. President, I had a sympathy today for the Senator from Ohio [Mr. Sherman] when he announced to the Senate that his judgment was that the amendment proposed by the Senator from Wisconsin was right; that of the two measures that ought to be a part of the Constitution rather than the proposition of the caucus, but that he could not support it; and he said that I had been placed in like circumstances a hundred times, and my political friends had decided for me how I should vote. I desire to say to that Senator that he is entirely mistaken upon that proposition. I never in my life cast a vote upon an important legislative measure because any body of men said I should; and I do not think I ever will. I am responsible to the people of the State of Indiana; and when it is proposed to change the Constitution of the country, I must be satisfied in my own judgment that the proposition is right, that it is the bedt proposition that is before the body, or that my constituents expect me to vote for it, else I cannot give it my vote. Mr. FESSENDEN. I should like to ask the Senator a question it lie will allow me. Mr. HENDRICKS. Certainly. Mr. FESSENDEN. Has it ever occurred in the history of that Senator that when he became satisfied that he could not get what he wanted he voted for the next best thing he could get, or did he stick to the first and lose it, and let the other go with it? Mr. HENDRICKS. I do not recollect ever to have been placed in just that embarrassment. I am practical in my views as a general thing, and do the best I can. Mr. FIISSENDEN. That, I suppose, is the case with the Senator from Ohio. Mr. HENDRICKS. I do not recollect any particular instance in which I was placed in the embarrassment the Senator suggests. Mr. FESSENDEN. I can vary the form of my question. Mr. HENDRICKS. Will the Senator allow me to complete my answer? When a proposition is before a legislative body, and an amendment is proposed to it, and the amendment, in my judgment, is better than the original proposition, I am never so embarrassed as to say that I shall vote for the more objectionable of the two propositions. I do not do it, and my party never ask me to do it. Mr. F.ESSENDEN. I suppose, then, if the Senator was satisfied that his vote would be thrown away on the first proposition but would have effect on the second, he would prefer to throw away his vote and thus lose both. Mr. HENDRICKS. I should vote for the proposition that my judgment approved. But so far as I have been connected with political parties I have never gone into any caucuses to decide upon any legislative measures. I have gone into caucuses to decide who should be the presiding officer of a body, and how the organization should be completed; I have gone into conventions for the purpose of establishing platforms for a political campaign; but to go into a convention of the members of the Senate or of the House of Representatives, in which a majority decides how the vote shall be cast and that majority fixing it, a measure is brought before this body which two thirds must support before it shall pass, I say is exceedingly objectionable. That is the position that the Senator

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from Ohio admits himself to occupy today. Upon a measure that two thirds of the Senate, under the Constitution, must approve before it can be submitted to the people, he subordinates his judgment to the will of a majority of his party friends in a caucus. He says his judgment approves of a particular proposition. I think that is illustrative of the present condition of the Senate. How the Senator from Oregon comes to offer an amendment at this time, I do not know. The amendment comes here. Whether he was authorized to make the proposition, whether there was some latitude allowed to him in the decisions, I do not understand. It seems to meet with favor. I do not want to vote upon it tonight; I am not ready to vote upon it; but I am willing to stay here and discuss the question until in the end we get to know something about it. As a part of may remarks, I ask that the proposition of the Senator from Oregon be read. Mr. SHERMAN. As a matter of course, in making the observations I did, I did not seek the approval of the Senator from Indiana, and do not now; but I have no doubt, and I repeat the assertion, that he has frequently, very many times, in the course of his legislative experience, found himself compelled to vote for a proposition which contained some matter in it that was objectionable. Scarcely a bill passes any legislative body, but what, when a member offers an amendment and fails to carry it, he votes for the measure although he has failed to carry his amendment; and I think that the Senator, who is under pretty good discipline in the Democratic party, has often given way his opinion on minor matters in order to carry a great proposition. My position is precisely this: I believe that several amendments of the Constitution are imperatively necessary. One of the amendments proposed relates to the basis of representation. Upon that I have a clear conviction that the gentlemen who will vote for these amendments have fallen into an error. Either I am in error or they are. I still think more than ever that the simple true basis is the number of voters; citizens of the United States fixed by the law of the State; but that proposition is voted down by a majority of those with whom I act. I do not expect the opposite side to vote for any of these propositions, and I do not consider their opinion worth much, because they commence by opposing the whole proposition. I do not regard their opinion as entitled to much weight with me in fixing the terms of the amendment. When each proposition has been agreed upon by the majority of those expected to vote for the whole, and I am called upon to vote on the whole proposition and defeat the whole proposition, or vote for it with some clauses that do not exactly suit me, as a matter of course I will vote for them; and I have no doubt the Senator from Indiana would do the same thing if he were in my place. Now, in regard to another matter, I do think that the attempt to press a vote on an amendment to the Constitution, which, although it is said only differs in form, none of us have had an opportunity to read, is made probably at this period of the day without sufficient reflection. Perhaps all of us will agree that the amendment proposed by the Senator from Oregon — a change of phraseology as he says — is the better proposition; but certainly, having adjourned yesterday at half past three o'clock when one of our own political friends was speaking in order to enable him to take two days to make a speech, we can scarcely refuse an adjournment now to the minority in order that they may be heard. Mr. CLARK. We adjourned yesterday at a quarter past four o'clock. Mr. SHERMAN. It is now five o'clock, and two amendments are introduced to the Constitution, it is true, only varying in form; but to attempt to force a vote on them tonight is simply absurd. It cannot be done in a body organized like the Senate. I, however, sympathize with all as to the long time that has been occupied by this debate, and I think a time ought to be fixed for taking the vote. The Senator from Michigan having this matter in charge says that he expects a vote on Friday evening, and if he adheres to that I will support him in it. Mr. HOWARD. I said "at least on Friday;" and I expect the vote to be taken in the morning. Mr. SHERMAN. I will support him in that. If some general understanding can be effected by which the vote may be taken on Friday I have no doubt we shall be able to get through without being at all hurried in the mean time. Mr. CONNESS. I move that the Senate adjourn. Mr. HENDRICKS. Mr. President— The PRESIDING OFFICER. The Senator from California has the floor. Mr. HENDRICKS. The Senator from California has not the floor. The PRESIDING OFFICER. The Senator from California was recognized by the Chair. Mr. HENDRICKS. I yielded the floor to the Senator from Ohio. The PRESIDING OFFICER. The Chair was not aware of that. Mr. HENDRICKS. I am not anxious about adjourning. I am entirely indifferent on that subject. If it is the pleasure of the Senate to stay here and discuss this measure this evening, I would just as lief go on now as at any other time.

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Mr. CLARK. If the Senator will permit me, I wish to make a suggestion to him. I do not suppose anybody on this side of the Chamber, or in the Senate, desires to force a vote 1866 THE CONGRESSIONAL GLOBE 2993 tonight, but we desire to make some progress; for I think all Senators will bear me witness that we have never been so much behind in matters before the Senate at any session as we are now. It is desirable for some of us to have a vote on this question on Friday by three or four o'clock. Mr. JOHNSON. Say five o'clock. Mr. CLARK. That would put it out of the power of some of us to go away from the city. It is necessary, I will say, that I should leave in the train on Friday evening, if I can. If we can have a vote by three or four o'clock on Friday. Mr. JOHNSON. The train does not go until half past six. Mr. CLARK. But we shall want something to eat after we get out of the Senate. If we can agree to take the vote by three or four o'clock on Friday, I shall be entirely content. Mr. HENDRICKS. I have a few remarks to make yet. I have repeated the expression so often that I do not care to do it again, that we ought to press the business that is before the Senate. I have expressed my desire that we shall not be kept here in the very hot months; but I have become almost indifferent about that. When I proposed this afternoon to adjourn, I thought it was a very reasonable proposition, especially in view of the fact that we had adjourned yesterday afternoon simply to accommodate a Senator who was addressing the Senate, and to allow him to occupy two days instead of one, and especially in view of the fact that that one Senator has occupied more of the time of the Senate than all the minority put together. I have also desired to agree upon some time when the vote shall be taken. I have always been ready to agree upon an hour for taking the vote on any proposition before the Senate; but I am entirely indifferent now, and would just as lief stay here for the remainder of the evening as not. I wish to speak of one other proposition of ethics on the part of the Senator from Ohio. In his usual plausible and delightful style he said that he would go with his party friends for a proposition that did not command his judgment rather than go with the Opposition and a portion of his party friends for a proposition that did command his judgment. Mr. SHERMAN. I do not think the Senator quite states my position. Mr. HENDRICKS. That is about the idea. I was trying to give the very words the Senator used, and I thought I had them, but not quite. That was about the idea, that rather than be associated with Democrats in the right, he would be associated with Republicans in the wrong. I can only account for that on the part of so elevated a gentleman in morals and intellect by the fact that he has been associated with Republicans in so much that is wrong he has to some extent become satisfied with that condition. The Senator laid down another proposition which struck me as singular. He said that if the southern States refused the right to vote to the negroes, and thereby said the negroes were not fit to vote, the southern people ought not to have representation for a class of men that they themselves said were unfit to be citizens. I want to know how the Senator is going to vote for this proposition if that doctrine be right; and it is not upon nonessentials, it is upon essentials. It is upon the most essential feature of this resolution — the relative representation of the States in the House of Representatives. It is not a non-essential; it is of the very essence of the resolution. The people of Missouri have by a most unjust, as I think, provision of their constitution said that one half of the people of Missouri are unfit to vote. How is it that the Senator will now, in amending the Constitution, continue to that minority a right to representation for the majority which they have by constitutional amendment declared unfit to vote? Mr. SHERMAN. Do you want an answer? Mr. HINDRICKS. Apply the principle. I am just discussing it. The Senator says that if the southern States elect to hold that the negroes are unfit to vote, they shall not be voted for upon principle; but upon principle if in Missouri a minority, by accidental power, excluding a majority, upon the ground that the majority is unfit to vote, the minority shall have a full representation for the whole. I want to know how that is. It is not upon a nonessential, not upon a matter of organization or political policy with which he agrees with his party, but upon a question of equality and justice in the representation of the States; upon the very merit and heart of this measure, if it has got any merit at all. Mr. President, if it is the pleasure of the Senate to adjourn I will not occupy the Senate any longer at this time; but whatever is the pleasure of the majority is my pleasure on that question.

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Mr. STEWART. I move that the Senate adjourn. Mr. DAVIS. Mr. President— Mr. STEWART. I withdraw the motion temporarily if the Senator from Kentucky desires to speak. Mr. DAVIS. I have two or three amendments that I want to present, and should like to have the amendment offered by the gentleman from Oregon voted on before I move them. Mr. SHERMAN. You can speak on that just as well. Mr. DAVIS. I will adopt the course suggested by the honorable Senator from Ohio, and speak to the general proposition of my amendments. Mr. STEWART. I move that the Senate adjourn. The motion was agreed to; and the Senate adjourned.

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3010 THE CONGRESSIONAL GLOBE June 7, RECONSTRUCTION. The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment offered by Mr. WILLIAMS, to strike out the second section and in lieu thereof to insert the following: Sec. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever the right to vote at any election hold under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Mr. DAVIS addressed the Senate for nearly four hours. [His speech will be found in the Appendix.] Mr. HENDRICKS. If no gentleman desires to speak, I was requested by the Senator from Maryland [Mr. Johnson] to take the floor for him, as he wishes to address the Senate on the question; and unless some gentleman proposes to address the Senate now I will move an adjournment. Mr. CLARK. I will inquire of the Senator from Indiana if he will not withdraw that motion and let us come to a vote on the amendments. We perhaps can take a vote on the amendments without debate, and then go on with the debate, on the resolution in the morning, and thus save a little time. Mr. HENDRICKS. I have no objection to that. The PRESIDENT pro tempore. Does the Senator from Indiana withdraw his motion? Mr. HENDRICKS. Yes, sir, The PRESIDENT pro tempore. The motion to adjourn is withdrawn, and the question is on the amendment offered by the Senator from Oregon [Mr. WILLIAMS] to strike out the second section of the resolution and insert a substitute. The question being put, the amendment was declared to be agreed to. Mr. HENDERSON. I ask for a division. I hope the amendment will not be adopted. The PRESIDENT pro tempore. The Chair declared it carried. Mr. HENDERSON. I ask for a division. The PRESIDENT pro tempore. Those in favor of the amendment will rise. Mr. HENDERSON. I desire to say just one word before the division. I will not take up any time. The object of this amendment is to secure nothing more nor less than is secured by the second section of the original proposition, and it is not pretended by any gentleman that it will accomplish anything additional to what is included in the section as it now stands. I will state a fact in reference to my own State, and then the Senate can do with it what it chooses. This amendment reads: But whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, &c. Now, we have in our State an election for school directors, a general election held in every municipal township throughout the State of Missouri, at a certain time. At that election there are qualifications prescribed that we deem absolutely essential to keep up the common-school system in our State. For instance, property holders only vote for school directors, because the tax for building the school-houses is only imposed on property holders. There is an election also for school trustees. The school directors divide the congressional townships into districts for school purposes, and those trustees are elected by the persons who have children to send to school. Now, if it be intended to exclude all persons who cannot vote at those elections from the basis of representation, I apprehend that not only will the negroes of my State be excluded under the proposed amendment, which will lose us a member in Congress, but it will exclude two thirds of the whites of the State of Missouri. I desire to know whether any such construction can be given to this proposition. It has been said, in reply, that the proposition as it now stands is subject to the same objection. I think not; because no court will construe, and Congress cannot possibly construe, the meaning of "the elective franchise," as generally used, to apply to such elections as that. I, at least, prefer the language of the original section to this amendment. I do not want to put myself in the way of what has been determined by the committee; but I do not desire to vote for a proposition that a sound and reasonable argument can be made against. I see no use of it. We do not accomplish anything whatever by it. Of course it may be left to Congress hereafter to say, under the section

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as it now stands, whether "the elective franchise" has been refused or not, and of course they will apply it to the general elections for political offices. But the language of this amendment is, "whenever the right to vote at any election." That language is not used in the original section. There is an election in my State where individuals are denied the right to vote unless they have a property qualification. The section which it is now proposed to strike out and to put this in lien of it does not contain this objectionable language. It does not say "at any election." Therefore the inference will be that it applies only to those general electinos at which political officers are elected, members of the Legislature, Governor, judges, &c. I prefer that this amendment should not be adopted. I do not think it ought to be the desire of members of the Senate to put any gentleman in an indefensible position in his own State where the laws of his State are of such a character that he cannot defend himself against a reasonable, rational opposition. Mr. FESSENDEN. The Senator is in error in one particular, in saying that there was no difference between this amendment and the section as originally reported. Mr. HENDERSON. In design. Mr. FESSENDEN. There is no difference in design; but the difficulty is, that as originally reported the provision was, in my judgment, and in the judgment of others, quite imperfect, for this reason: its language was, ''if the elective franchise shall be denied or in any way abridged." The preceding clause was that "Representatives shall be apportioned" in such and such a manner. The subject-matter of the clause is simply the apportionment of Representatives in Congress. Then it goes on to say, "if the elective franchise shall be denied." It is a very common and well-received rule of construction that the words in a sentence must, if they can be naturally, limited to the subject-matter of the provision itself. Therefore it might be held, and in my judgment it might be properly held, as the section stood originally, that if the elective franchise was granted in the election of Representatives to Congress and denied in everything else, that denial in everything else would not have any effect on the basis of representation, and under that construction the provision would not accomplish the purpose which was designed, because it was designed to cover the whole; and therefore it became necessary to change the language. The committee decided that it was advisable to change the language, and we decided on the language that is found in the amendment now before us. If other language can be found that is unobjectionable, and that would cover it, of course we are not particular about that. I do not think the amendment is open really to the objection that my friend has stated. It is intended to cover the election of officers generally; but if all those arrangements which are made with reference to minor matters are looked to, it would be impossible absolutely to give it any practical effect, because you never could tell what the numbers were that were disfranchised, if you please to call it disfranchisement, by any provision of the kind that he speaks of. If it would be held to apply to the election in school districts of school officers, I do not see why, by the same rule, it would not apply to the election of directors in banks or other corporations in the States, and certainly it never would be carried to that extent. The words must have a reasonable construction always, and a reasonable limitation. Mr. HENDERSON. Will it apply to the election of city officers under the amendment as it now stands? Mr. FESSENDEN. I think it would to municipal officers. Mr. HENDERSON. Then why would it not apply to the election of a township officer, because that, is still larger? Mr. CLARK. Is it a political office? I do not think a school director is. Mr. HENDERSON. The mayor or recorder of a city is not a political office. Mr. 1ESSENDEN. A municipal officer is a term very well understood. I think it would be a matter of difficulty, not to say impossibility, to carry it out with reference to finding out who were disfranchised in such elections as the Senator speaks of, and I do not think this proposition could be held to apply to such elections at all. I do not believe it will be attended with any difficulty. At any rate, to meet the object, we could not devise a better form of words than we have. I know I worked on that second proposition until my head got so thoroughly muddled with it that I would not attempt to make another. Mr. HENDERSON. I suppose it is in order to amend the proposition before it is acted upon. Mr. FESSENDEN. I suggest that the Senator had better let it be adopted, and then he can move his amendment when we come into the Senate and he will have an opportunity to deliberate upon it in the mean time. Mr. HENDERSON. I do not wish to take any time about it; but my objection is a serious one, and I am in earnest about it. It is a thing that I really think ought to be attended to. Mr. TRUMBULL. We do not seem to be making any progress, and there is some misunderstanding as to what the precise meaning

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1866 THE CONGRESSIONAL GLOBE 3011 of this language is. I suggest, therefore, whether we had not better adjourn and settle it in the morning. We all desire the same thing, I suppose. Mr. FESSENDEN. We had better get through with these amendments and have the resolution reported to the Senate, and then we can amend this proposition afterward, if necessary. Mr. TRUMBULL. But we are not likely to get through them, because there is a controversy arising, and if we have got to change them we had better have a little time to consider them. Mr. CLARK. I suggest that we have the resolution reported to the Senate, and then we shall have time to change it. Mr. TRUMBULL. Nothing will be gained by that. Mr. CLARK. We shall get through one stage of it. Mr. TRUMBULL. I shall not make a motion to adjourn if it is objected to, but I think we might as well adjourn. Mr. HENDERSON. Before the Senator makes his motion to adjourn, I desire, if this amendment must be adopted, to move an amendment to it. I move to strike out the words— But whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, being twenty-one years of age— And to insert: But whenever the right to vote for Governor, judges, or members of either branch of the Legislature is denied by any State to any of its male inhabitants being twenty-one years of age, &c. That will certainly include all general officers of a State. Mr. FESSENDEN. That does not include Representatives to Congress. Mr. HENDERSON. The Senator from Maine seems to be laboring under the impression that that does not include Representatives to Congress. The Senator is mistaken. Mr. EESSEN DEN. I suggest to the Senator whether he had not better let the amendment of the Senator from Oregon be adopted, and then move his proposed amendment when we get into the Senate, and it can be considered tomorrow morning. Mr. HENDERSON. I desire to correct the Senator. The Senator labored under an error when he said that that amendment would not apply to the election of members of Congress. The subject-matter that we are talking about now is the qualification of voters. I say that the qualification of voters shall be of a certain character for the election of members of either branch of the State Legislature. The Constitution, as it now stands upon that subject, provides in the second section of the first article that— "The House of Representatives shall be composed of members chosen every second year by the people of the several States: and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." Therefore, when you fix the qualification of voters for the most numerous branch or the lower branch of the State Legislature, you fix the qualification of voters for members of Congress. You do not propose to alter the Constitution on that subject. The Senator is mistaken in another proposition — that it will not apply to an election held under the Constitution and laws of the United States. The only election that can be held under the Constitution and laws of the United States is for members of Congress. There is but one other case, and that is the election of Electors who elect the President; but those Electors, as now provided by the Constitution, are to be elected by the State in any manner it chooses. A State may provide that the State Senate may elect the Electors, or it may provide that the two branches of the Legislature may elect them. In South Carolina they are never elected by the people; and unless you alter the Constitution on the subject the State Legislatures will yet have the power to regulate that matter entirely as they please, and this amendment will not change it at all. There is, therefore, but one election that can be held under the Constitution and the laws of the United States, and that is the election of members of the lower branch of Congress, because Senators are elected by the Legislatures. You cannot conceive of another election held under the Constitution and laws of the United States. Hence I can see no necessity for saying, in this amendment, "whenever the right to vote in any election held under the Constitution and laws of the United States." Those words are superfluous, because you are fixing only the qualifications of electors in one case under the Constitution and laws of the United States; that is, of members to the lower branch of Congress. Under the Constitution as it now stands, those electors must have exactly the same qualifications as electors of the most numerous branch of the State Legislature. Therefore, we may as well say, "whenever the elective franchise shall

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be denied to the persons who elect the most numerous branch of the State Legislature," and then, of course, you have included those words "elected under the Constitution and laws of the United States." The Senate will see what I am aiming at. I do not want to get the people of my State involved in any difficulty, nor the people of any other State, and have the probability of excluding from the basis of representation, or even to have the charge made that that is the object or intent of this thing, to exclude from the basis of representation those persons who may fail to be electors at some school election. Mr. HOWARD. Will the Senator from Missouri allow me to make a single remark here by way of interrogatory? Mr. HENDERSON. Yes, sir. Mr. HOWARD. The proposition of the Senator from Missouri is this, if I understand it, that, whenever any persons shall be by the legislation of a State excluded from voting for members of either branch of the Legislature, the persons so excluded shall not be embraced in the basis of representation. Now, suppose the State should fix one sort of qualifications for the voters who are to vote for the most numerous branch of the Legislature and a different kind of qualifications for those who are to vote for the less numerous branch of the Legislature, there would be a portion of the citizens excluded in that case, would there not? Mr. HENDERSON. The larger portion would be excluded, of course, because it applies to either branch of the Legislature. The larger number would be excluded; that is, if one half of the people were excluded from voting for State senators, of course one half would he excluded from the basis of representation; but if one half were excluded in voting for a senator and only a tenth in voting for the other House, one half would be excluded because the State excluded them in the election of senators. The larger number would always be excluded from the basis of representation. Mr. HOWARD. Allow me to put it in more tangible form. Suppose, for illustration's sake, that the whole number in a State of male citizens over the age of twenty-one is one hundred thousand, and suppose that by the laws of the State every one of those citizens is allowed to vote for members of the most numerous branch of its Legislature, and that only fifty thousand of them are allowed to vote for members of the upper or less numerous House of the Legislature. You will see, then, that there are fifty thousand citizens of the State excluded from the right to vote. Mr. HENDERSON. That is so. Mr. HOWARD. Are those fifty thousand to be included or excluded from the basis of representation in Congress? Mr. HENDERSON. Under may amendment they are excluded, because according to that they must be qualified to vote for Governor, judges, and members of both branches of the Legislature or else they cannot go into the basis of representation, My object was to carry out the principle of the section proposed by the committee, to make it apply to general, political, and judicial officers, and not to make it apply to all minor officers, because if so applied, technically, in my State it would exclude from the basis of representation two thirds of the white people of the State. Mr. HOWARD. The Senator will see at once that his scheme does not establish any certain and fixed standard for the basis of representation; the elements entering into that basis of representation are quite uncertain and changeable. Mr. GRIMES. In order to enable the Senators from Michigan and Missouri to come to a satisfactory understanding on this subject, I move that the Senate adjourn. The motion was agreed to; there being, on a division—20 ayes and 7 noes; and the Senate adjourned.

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3026 THE CONGRESSIONAL GLOBE June 8, RECONSTRUCTION. The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment of Mr. Williams to strike out the second section and to insert the following in lieu thereof: Sec. 2. Representatives shall he apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, being twenty-one years of ago and citizens of the United States, or in any way abridged except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Mr. COWAN. I should like to ask how those persons excluded are to be ascertained; how the number of them is to be ascertained. How is it to be determined how many are excluded because they have not paid a tax within two years in my State, and how many are excluded because they have not resided in a particular district a certain length of time before voting? I suggest that these things seem to be of some difficulty in the proper determination of this question. Mr. JOHNSON. I believe, Mr. President, that the question immediately before the Senate is the amendment offered by the Senator from Oregon to the joint resolution. Before I proceed to discuss the questions which, as it seems to me, are presented by the proposition as a whole, I beg leave to say a word upon the particular effect of that amendment. The hon1866 THE CONGRESSIONAL GLOBE 3027 orable member who offered it, and who I suppose offered it with the concurrence of some of his friends who are in favor of the measure as it originally stood, I think stated to us the other day that it did not substantially change the provisions to be found in the second section of the original proposition. What I suggested to him then I propose very briefly to suggest now, that perhaps in that he is mistaken; and as, in common with every Senator, I am, as I should be, desirous of having these constitutional amendments made as plain as language can make them, so as to avoid the evils sure to result from the existence of any ambiguity, I suggest that I think it will be found that the amendment of the Senator from Oregon is obnoxious to a very serious objection, and goes very much further than the original proposition for which he proposes it as a substitute. The language of the substitute, as far as the exceptions to which the general rule which it states at the same time is to be subject, is, that "whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State," &c., they are to be deducted from the number which is to constitute the basis of apportionment. The language of the original proposition was, that. "whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, not less than twenty-one years of age, or in any way abridged," &c., then the basis is to be reduced in the proportion that the number excluded shall bear to the whole number of that age and of that sex. Now, I think it will be found (and in that I believe I have the concurrence of several members of the Senate who are in favor of the proposition as it was originally presented) that the effect of the amendment is to change the basis by deducting from the number which is to constitute the basis, any portion of that number, of twenty-one years of age, who are citizens of the United States, who shall be denied the right to vote at any election under the constitution or laws of any State. In all the States there are elections of a municipal character that are regulated by law, and in which the franchise is different from that which prevails in the general elections of the State; and the consequence would be that where any persons who are twenty-one years of age are denied the right to vote the basis of representation is to be lessened in the proportion that the number excluded shall bear to the whole number falling within the class. I do not know what would be the condition of the State of Missouri, for example, if the amendment is to be adopted. I rather think that she would lose very materially by this amendment, in her representation; and I think the same thing would be found true of the State of Ohio, and I suppose of nearly all the States in the Union. What I suggest; therefore, to the honorable member and to the Senate is, that the phraseology of this amendment, if it is to prevail, shall be so changed as to leave it beyond doubt that all that is meant is to except out of the whole number of inhabitants of the age of twenty-one years or upward, who are citizens of the State, those who are denied the right to vote at any State election, as contradistinguished from any municipal or local election. Without such a qualification I am sure it will lead to very serious doubts, and it may lead, as those

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doubts may be solved, to a very serious diminution of the representation of several of the States. What I am about to say upon the merits of the rule itself; whether that rule is found in the amendment or found in the original proposition, will be said as briefly as I can say it, and more for the purpose of explaining to my own constituents the ground of the reasons for the vote which I propose to give than with any hope of influencing the opinions of any member of the Senate who is now in favor of the proposition. It comes before us in such a shape and under such circumstances that it is not to be expected, as I think, that those who were consulted, who deliberated upon, and who advised the measure in the form in which it stands, can be persuaded of the error of that measure in any particular by anything which may fall from a Senator who is opposed to the entire proposition. The Constitution of the United States, as it now is, in the second section of the first article provides for the manner in which the apportionment is to be made of Representatives in Congress. It is made to depend upon the whole number of the people found in each State; and in relation to the propriety of such an apportionment there did not exist in the Convention by whom the provision as it now stands was adopted, any doubt. In the fifty-fourth number of the Federalist, attributed, whether correctly or not, to Mr. Hamilton — there is some doubt whether he or Mr. Madison was its author — in recommending the adoption of the Constitution to the people of the United States, and commenting upon the manner in which the apportionment was to be made, as well as the manner in which taxes were to be levied, it is said: "It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State." That rule in the same paper was said to be one "referring to the personal rights of the people, with which it has a natural and universal connection;" and the only doubt which existed in the minds of the Convention or any member of the Convention upon the subject was not whether numbers was not the true rule by which the basis was to be ascertained, but whether the slaves of the southern States should be considered as a portion of those numbers; and that doubt arose because the southern States insisted that the slaves were property, and the North, while recognizing the existence of property in slaves, thought it unjust that the slaves should be considered at all in apportioning the number of Representatives to which the States where the slaves might be found should be entitled. The result was, after quite a struggle upon the subject, a compromise, by which taxation was to be regulated and by which the apportionment of Representatives was to be regulated by counting five slaves as only equal to three freemen. But, I repeat, neither then nor at any time since, until now, did it ever occur to anybody that in a form of government like ours the basis of representation was not to depend upon the entire number of the people to be represented; and in this amendment that is admitted to be the true basis. It provides, both as it was originally proposed by the committee by whom it was reported and as it is proposed to be amended by the honorable member from Oregon, that Representatives shall be apportioned among the several States which may be included within the Union according to their respective numbers, counting the whole number of persons in each State and excluding Indians not taxed. So that the honorable committee and the friends of this particular measure give their sanction to that as the true rule. They stand upon the ground on which our fathers stood when they adopted a rule of the same description in the Constitution, as it now stands, that numbers are to regulate representation. The only question, therefore, which the particular amendment suggests is, whether it is right to qualify the operation of that general rule as is proposed to he done by this provision. Now, what is the qualification? Only that persons twenty-one years of age inhabiting each State, and being citizens of the United States, whose right to the exercise of the elective franchise is denied or in any way abridged, except in certain exceptions to which I shall refer after awhile, are to be deducted from the whole number, and the basis is to consist of what may remain. But the friends of the measure are not willing — I say not willing because that is not the effect of the amendment — to subject the rule which they themselves admit to be just to the general qualification which a general provision of that sort would make; and they therefore except from the operation of that qualification certain classes. Who are they? I say they except by not including, for all persons not included within this exception are acknowledged within the scope of the general rule of numbers. Now, who are to be found in the States? First, aliens; second, women, black and white, now all the blacks are free third, minors, those under twenty-one years of age, white and black; fourth, those who may have participated "in rebellion or other crimes." Then what will be the operation of the section if we adopt it? It will be that all aliens are to be represented, all women are to be represented, all minors are to be represented, and all rebels are to be represented. Why is that? This is to go before the people. How will the objection be answered, as it is certain to be made before the. people, when the authors of this measure are asked, why suffer the women and minors to be

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represented, why suffer aliens to be represented, and, above all, why suffer rebels to be represented, and not suffer loyal men to be represented? How will it be answered, I mean to an unimpassioned judgment; I mean to a people who it is to be hoped will not be influenced by the excitement of party passion or by the prejudices growing out of the sad conflict through which we have triumphantly come? It is to be only answered upon the ground that the provision is necessary to secure to the black man the franchise. Is that any answer? Is it any answer that because you cannot acquire for the black man the right to the franchise he is to be denied the right of being represented? Your own theory is, as it was of your fathers, that all should be represented without reference to color, the black as well as the white. The black is a freeman. That is your theory. But the effect of the exception is to deny to the black man the right of representation unless the State shall secure to him the right to the franchise. Again, Mr. President, the measure upon the table, like the first proposition submitted to the Senate from the committee of fifteen, concedes to the States — and that was one of the grounds upon which the honorable member from Massachusetts [Mr. Sumner] voted and spoke against that proposition — not only the right, but the exclusive right, to regulate the franchise. His theory was that under the Constitution as it now stands, Congress has the authority to regulate the franchise in the States; and his objection to the original proposition, to which I have just adverted, was that, if adopted, it would surrender that right which lie supposed to exist and yet I imagine it is barely possible that he may vote for the section as it now stands; and what does it do? It says that each of the southern States, and, of course, each other State in the Union, has a right to regulate for itself the franchise, and that consequently, as far as the Government of the United States is concerned, if the black man is not permitted the right to the franchise, it will be a wrong (if a wrong) which the Government of the United States will be impotent to redress. I sec no difference, not the slightest, between the proposition as it now stands, so far as this section is concerned, and the original proposition which we rejected. I call the attention of my friend from Massachusetts, to whom I referred just now, to the language of the original proposition reported to us by the committee of fifteen on the 31st of January last. It says that Representatives shall be apportioned among the several States, &e.; "provided, that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation." What does this do? The words "race or color" are omitted. Why, if I was an eastern man, I might guess; but no matter what may have been the particular motive for the omission of the words, the effect of the proposition is identical with that of the 3028 THE CONGRESSIONAL GLOBE June 8, original proposition. The former was obnoxious to the honorable member from Massachusetts because it surrendered a right which he made a very elaborate speech to prove, in his judgment, existed in the Congress of the United States to regulate the franchise, if not always, certainly in the condition in which the country now is. This accomplishes the same purpose. It says to the States, "If you exclude any class from the right to vote, we, admitting your power to make the exclusion, say it shall have no other effect whatever than to deduct the number excluded from the whole number which is to constitute the basis of representation. If, therefore, you exclude from the benefit of the franchise any who are citizens of the United States, and twenty-one years or more of age, and inhabitants of the State, who belong to any particular race, or who are of any color contradistinguished from the white man, we admit that you have a right to exclude them, and all we propose to do is to say that to the extent of that exclusion your basis of representation shall be diminished." Now, is it not known to us all that there is not in any one of the southern States, and has not been for years, any exclusion of any white man having the age and having the residence required by the Constitution and laws of the particular State, from the right to the franchise; that the whole exclusion, where there has been any exclusion at all, has been of the free blacks, and will hereafter be of all the blacks, as all are now free? The whole operation, therefore, of the proposition before you, that part of it to which I am now addressing myself, is to say precisely what the original proposition of the 31st, of January said "You who deny to any person belonging to any race or color the right to vote shall have your representation in the Congress of the United States lessened in the proportion that the number excluded shall bear to the entire number." The manner of ascertaining the way in which the representation is diminished is changed in point of form, but the result is the same. By the original proposition of January 31 all of the race or color were to be deducted; by the proposition before us the deduction is to be in the proportion that the number excluded shall bear to the combined number of those included and excluded within the privilege of the franchise. Let me for a minute call the attention of the body to what will be the operation of that provision. The census of 1860, and I believe that is the case with all previous censuses, does not give us the number of males of twenty-

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one years of age, but it does give the number of those who are twenty years of age and upward. Mr. FESSENDEN. Allow me to ask the Senator a question, by way of illustration. Mr. JOHNSON. Certainly. Mr. FESSENDEN. Suppose there are two hundred thousand male citizens in a State above twenty-one years of age, and they are all allowed to vote; then the whole two hundred thousand would be included under this proposition as the basis. Mr. JOHNSON. Certainly. Mr. FESSENDEN. Now, suppose the State denies the right to vote to twenty or fifty thousand of that number, the basis is reduced precisely in that proportion. The language is explicit that the basis shall be reduced in that proportion. Mr. JOHNSON. We shall see about that in a moment. It is not the proportion that the number excluded bears to the entire number included and excluded. Mr. FESSENDEN. No; in the proportion that it bears to the whole number of male citizens twenty-one years of age and upward. Mr. JOHNSON. Of course that means those included and excluded. I mean the whole number twenty-one years of age and upward. Now, let us see what will be the operation of the amendment on my own State. I will take that first. In 1860, by the census, it appears that Maryland had 128,371 white males twenty years of age and upward, and that she had of the same age 38,030 black males. The percentage, therefore, that the blacks of that age bore to the whites was twenty-nine and five tenths per cent. Now, in order to make myself understood more clearly, let me turn to the words of the section. If any portion of the male inhabitants of a State twenty-one years of age and upward are denied the privilege of voting, or that privilege is in any way abridged, then "the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age." Then, what are we to do? We are to add together the number of whites of that age in Maryland and the number of blacks, and the aggregate is 166,401. Now, what says the section? That the representation of Maryland is to be diminished, if she excludes all the blacks, in the proportion that 38,030 bear to 166,401. What is that proportion? It is nearly one fourth; it is exactly twenty-two and nine tenths per cent. Let me be understood; for if such is not the purpose of the committee, I am sure they will change it. The basis of representation, in the event of an exclusion, is to be reduced "in the proportion which the number of male citizens" who are excluded "shall bear to the whole number of male citizens" not loss than twenty-one. Is it not manifest, then, that we are to ascertain, first, how many white Citizens there are who are permitted to vote; second, how many citizens there are who are not permitted to vote? I assume, now, that in Mary-land the whole number of black citizens who might veto with the authority of Maryland will be excluded by her authority, that number being 38,030, and the aggregate of both classes being 166,401. Having got the entire number, what is the next step toward ascertaining the effect of the proposed amendment? To ascertain the proportion that the number denied the franchise bears to the entire number who it is assumed ought to have the right to the franchise. In other words, to apply it to the case of Maryland, the representation of Maryland is to be diminished by diminishing the basis of her representation in the proportion that the number of citizens excluded bears to the whole number, es well those who taro included within the benefit of the franchise as those who are excluded. Then it is a simple question of arithmetic, what is the proportion between 38,030 and 166,101? It is nearly one fourth. The basis would be lessened twenty-two and nine tenths per cent, or in other words twenty-two and nine tenths per cent of 166,101 would he deducted from that aggregate number. What would he the result of that? The result would be the loss of one Representative, Maryland now having five, and possibly, by force of the fraction, the loss of another, but certainly the loss of one. But it is a great deal worse in other States — a thousand times worse. I refer now to the same table furnished by the census of 1860. I shall not trouble the Senate with it, except to call their attention to two or three of the other southern States, and then to two or three of the northern States by way of comparison. The number of white male citizens twenty years of age and upward in the State of South Carolina when this census was taken was 68,154. The number of black males of the same age at the same time was 92,923, being a percentage of fiftyseven and six tenths of the aggregate, Here, then, the black males were more numerous than the white males above twenty. What is to be done in South Carolina? You add together the number of whites and the number of blacks, and if the blacks are not permitted to vote, as they are not, then you deduct from the basis of representation such an amount as may be ascertained by ascertaining the proportion that the number of blacks bears to the aggregate number of whites and blacks, and what is that? As 92,923 is more then 68,154, South Carolina loses at least one half of her representation, and in fact she loses more. It is sufficient for may purpose to

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show that she loses one half. Go to Mississippi and the result is nearly the same. Her white males above twenty were 84,338, and her black males of the same age 98,510, being a percentage of fifty-three and eight tenths of the whole. So that State would lose half her representation. Now, Mr. President, how will the rule proposed operate on the northern States? The people of the northern States are, and are correctly assumed to be, just and fair. How does it operate on the State of my friend the chairman of the committee of fifteen, [Mr. Fessenden?] Her whites of twenty years of age and upward in 1860 were 167,724 and her blacks of the same age were 362, a percentage of two tenths of one per cent. His State will not suffer by this provision, it is certain. Then go to the State of my friend from New Hampshire, [Mr. CLARK.] They had 91,944 white males above twenty and 149 blacks, a little over one tenth of one per cent. It is obvious that neither of these two States will lose anything by this rule. I need not fatigue the attention of the Senate by calling their attention to the other northern States. Gentlemen diminish our representation unless we consent to surrender our own judgment of what we believe to be true policy, and they leave their own untouched. It is a ruinous result as far as we are concerned; it is a perfectly harmless result as far as they are concerned. How is it in the State of my friend from Michigan, [Mr. Howard] who has had more especially the charge of this measure since it came from the last special committee? Mr. CLARK. Do yon mean the committee of fifteen? Mr. JOHNSON. There was but one committee of fifteen; but I believe, or at least it is shrewdly suspected, that there has been another committee. Mr. CONNESS. What does the Senator know about that? Mr. JOHNSON. I guess again, and I guess that nay friend from New Hampshire [Mr. CLARK] has some knowledge of it. The State of Michigan, in 1860, had 200,474 white males of twenty and upward, and only 1,898 blacks of the same age, being a percentage of eight tenths of one per cent.. There is no terror in the operation of this clause upon my friend from Michigan, whose State will have at least as many Representatives as she has now, even if she stops growing. Ours is to be diminished; hers, at least, is to remain as it is, to be changed only by an increase of her population. Every man in Michigan, every woman in Michigan, every alien in Michigan, every rebel in Michigan, (if they have rebels there,) is to enter into the calculation of the number which is to constitute the basis of representation of Michigan. One fourth of our aggregate male population is to be deducted, more than one half of that of South Carolina and Mississippi is to be deducted. Now, what is it all for? What is the purpose of the exception? There can be but one. In Maryland we have a contest now going on, which, as I judge from the newspapers, is supposed by one side to involve the question of negro suffrage, and upon the other side to be wholly irrespective of that question. What is this provision for? Is it not to force negro suffrage upon every State by holding out a punishment, or a provision in the nature of a forfeiture, to any State that denies it? Does it not say to the State of Maryland, "You are now represented in the councils of the nation by five Representatives in the House of Representatives; but you shall in future, when this provision goes into operation, be represented only by four, unless, contrary to your judgment, contrary to your past policy, contrary to what all parties among you allege to be your present conviction, you agree to admit to the right of suffrage your black population who are of the age of twenty-one years and upward?" The effect, therefore, of the measure which 1866 THE CONGRESSIONAL GLOBE 3029 I am discussing, and of course its purpose — for gentlemen of the intelligence of those who are friends of this measure must be supposed to know what its effect is and to design to bring about in some way or other some change in the politics of the State — the effect is to strip the South of a portion of her representation unless she will agree to change her suffrage laws. I do not know that the South would adopt — I am sure that it ought not to adopt — the course which I am about to suggest; but suppose that the moment this provision is adopted they admit their blacks by law to the right of suffrage; then their representation will not be diminished. Suppose that when the representation has been apportioned on this basis, they repeal those statutes. The right to do either cannot be denied. The right to do the first is conceded by the proposition before us, and the power which includes the right to do the first necessarily includes the right to do the other. Are you going to change the number of Representatives of those States just in proportion from time to time as the suffrage may be extended or diminished? If that is the object, we shall be in a state of constant turmoil. Why should it be so? What can the northern States apprehend from having the States of the South represented as the Constitution now provides? What, gentlemen, are you afraid of looking at your own section?

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What now is the whole number of Representatives? The whole number of Representatives in the other House, under the apportionment made after the census of 1860, in virtue of the act of March 4, 1862, and other acts, is two hundred and forty-two. Of that number what were denominated as free States before slavery was abolished are entitled to one hundred and fifty-seven, and what were known as the slave States eighty-five, showing an excess of Representatives on the part of free States over those from the slave States of seventy-two. In other words, if the States were all represented now as they were represented before the rebellion commenced, there would be a clear majority of Representatives upon the part of the northern States of seventy-two. Then it is an insult to those States, it is to impeach the integrity of their Representatives now in Congress or who may come into Congress at any time hereafter, to suppose that with such a majority as that the respective interests of their States, if such interests shall be supposed to conflict at all with the interests of all the States, will not be protected. It is to tell the country that you doubt your own ability: you, with one hundred and fifty-seven Representatives, doubt your power to cope in the councils of the nation with eighty-five Representatives from the southern States; to tell them consequently that although your majority is a majority of seventy-two, you are apprehensive that in some way or other the South may get the control of the Government. What a reflection upon yourselves! I was about to say, how dishonoring to yourselves, if such an apprehension is entertained, is such an apprehension. What an imputation it is upon the wisdom and the firmness and the patriotism of your own people. What a strong and startling fact will it be considered and be used by those who question the ability of the people to govern themselves, that their representatives upon this floor wish to guard by constitutional amendment their being injured by the efforts of eighty-five men coming from the southern States against one hundred and fifty-seven men coming from the free States. I invoke honorable Senators to be as firm, as decided, and as energetic in defending the interests of their respective States in the councils of the nation as they and their people have discovered themselves firm and energetic in defending the interests of the whole upon the battle-fields of the late struggle. Do not show the white feather now. Do not, above all, say to your fellow-countrymen and to the world, "We are not the equals of the men of the South when we are brought together in the councils of the nation." You do not think so, I am sure; certainly I do not think so, and never have thought so; but I invoke you, as a friend, not to interfere with the rights secured to the southern States now by the Constitution which our fathers gave us, upon the pretense, utterly without foundation, that the rights of your respective States will be subjected to the slightest peril by continuing the representation as it stands. Mr. President, I have now said all that I propose to say upon the operation of the second section as it was originally presented to the Senate and as it is proposed to be amended by the honorable member from Oregon, and having upon a former occasion submitted all the remarks that I deem it necessary to submit in relation to the third section of the original proposition, which I do not understand it is proposed to alter — Mr. WILLIAMS. I understood the Senator to say that he had proposed to make some remarks upon the amendment that I offered. Mr. JOHNSON. So I did. Mr. WILLIAMS. With the permission of the Senator I will state here that the amendment which I offered I find is subject to some verbal criticism which is plausible, but I do not think well founded. I find it so easy to remove the difficulty that, upon consultation with the committee and the other friends of the measure, I propose to strike out certain words and substitute others which will, perhaps, obviate some of the objections of the Senator. Mr. JOHNSON. I had said all I propose to say upon it. Mr. WILLIAMS. I propose to modify it by striking out the words But whenever the right to vote at any election held under the Constitution and laws of the United States or of any State-And to insert the words: But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or members of the Legislature thereof. Specifying particularly the officers for which these people must be allowed to vote in order to be counted. Mr. JOHNSON. That removes some of the objections to which I supposed the original proposition was subject; and that shows how exceedingly cautious we should be in these constitutional amendments; how very difficult it is to change the Constitution of the United States for any good purpose; and I mean by purpose, for the accomplishment of any good end. Now, what is the history of this attempt? At the beginning of the session a joint committee of fifteen was appointed to take into consideration the proper measures to be adopted, and they reported, first, the proposed amendment of the Constitution, of the 31st of January. That was rejected. They

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reported next, as a second plan, on the 10th of May, 1866, one article consisting of five sections; and here it lay for several days, when it went through an examination elsewhere, and the result was the report made by the honorable member from Michigan on the 20th of May last. Almost the entire thing has been changed since; and here is my friend from Oregon, who, yesterday or the day before, after bringing all the acuteness which belongs to him to the examination of the second section as proposed by the committee, and after calling, no doubt, other friends of the measure to aid him, introduced his substitute for the second section; and only two days have gone by when he has become satisfied that he was wrong. Mr. WIILLIAMS. No, sir. Mr. JOHNSON. Or, if he has not, he has not been able to satisfy his friends that he is right; which is pretty much the same thing; and he says very frankly that he proposes to amend it. Sir, without meaning to disparage the members of the Senate of the United States, or the men of the present age found in the public councils, either of the States or of the United States, I have a very shrewd suspicion that we are not the superiors of the men who formed the Convention that adopted the Constitution. Mr. WILLIAMS. I beg to ask the honorable Senator whether the members of the Convention which originally formed the Constitution of the United States, with all their wisdom, did not have about as much difficulty in making the Constitution as we have in agreeing upon amendments? Mr. JOHNSON. I know they had; but they accomplished it and it was adopted; and they took a great while to do it, and they did it, not in the midst of a political excitement. No presidential election was looming in the distance or near at hand. No contest for political power, as is about to come off even in the present year. A nation was to be created by means of their wisdom, and a nation they did create, awful in war, happy and conservative in peace. Now we are about to change it in a vital particular, even by the very amendment of the honorable member from Oregon, to change the basis of representation as they established it, although such a man as Hamilton, in the number of the Federalist to which I have adverted, said that not a member of the Convention doubted that that was the proper basis. Upon that they had no difficulty. They said that, according to the republican theory upon which the freedom of the people of the United States was supposed to rest, all ought to be represented. Now it is proposed to deny the right to be represented of a part, simply because they are not permitted to exercise the right of voting. You do not put them upon the footing of aliens, upon the footing of rebels, upon the footing of minors, upon the footing of the females, upon the footing of those who may have committed crimes of the most heinous character. Murderers, robbers, house-burners, counterfeiters of the public securities of the United States, all who may have committed any crime, at any time, against the laws of the United States or the laws of a particular State, are to be included within the basis; but the poor black man, unless he is permitted to vote, is not to be represented, and is to have no interest in the Government. Why, sir, my friend from Massachusetts [Mr. Sumner] has over and over again said that the State governments, even as they existed before the rebellion, and as they now exist, are not republican governments, and that we should change them by virtue of the obligation imposed upon the Government of the United States to guaranty to the people of each State a republican form of government. What more anti-republican doctrine, looking to the genius of our institutions, can be imagined than that which says that there may be within the limits of any State a people who are not to be represented? The war of the Revolution was not waged because of the miserable tax which England imposed, but because she claimed the right to tax those who were not to be represented; in other words, because the colonies had no representation in the Parliament of England. And yet you tax the freedman; the States tax the freedman; you subject the freedman to the authority of both, while at the same time you say, "You may not be represented, and it is not our purpose to secure a representation to you. Everybody else is to be entitled to the benefit of the doctrine that there shall be no taxation without representation, but you are to be an exception." Mr. CONNESS. Because you are disfranchised. Mr. JOHNSON. Because you are disfranchised! So are women disfranchised; so are rebels disfranchised; to are children disfranchised; so are the Chinese in California disenfranchised. Why do you want to represent them? You have them all represented under this amendment. I have had occasion before to state what I supposed to be the clear misapprehension of this doctrine. The honorable member seems to suppose that representation and the franchise are identical. They are as different as light from darkness. The Constitution says so; your own amendment proclaims it. You 3030 THE CONGRESSIONAL GLOBE June 8, say that representation is to depend upon numbers. So did your fathers say so. They said it and you have followed their teaching, because they said it was a right to be represented, but not a right to vote. In the language of

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Hamilton, in the Federalist to which I have referred, that was a personal right, which, upon the theory of our institutions, ought to be secured, and just in proportion as it is denied just in that proportion are you trampling upon the theory or violating the theory. Now you want, 1 suppose, whatever you do to be adopted. Do you suppose that the States who are to lose representation by this measure, unless they agree to bring about the contingency which it is to avert, will adopt this amendment? Mr. CONNESS and Mr. WILSON. We do. Mr. JOHNSON. Then you misapprehend the southern people just as much as you did before the war commenced. 1 do not mean you gentlemen individually. There was an impression at the North that the South was not in earnest. There was a corresponding impression at the South that the North was not — both fatal errors; the first just as fatal as the last. I say the South will not adopt it, because your people, if you were in a condition in which your rights would be so affected by this amendment as will be its operation upon the rights of the South, would not adopt it. Massachusetts never would agree to an amendment which was to deprive her of a part of her representation unless she would consent to abandon a policy which she had adopted from the beginning of her existence. And yet you ask us to do it. The whole effect and the whole object — I have a right to say that, because that is the whole operation of the amendment — the whole effect of the proposed amendment is to strike a blow at the southern Stales who are now, according to my theory, in the Union, and who are in this Union upon the theory of this amendment, unless they will agree to a policy at war with the policy illustrated throughout their entire history. What more do you do? By the third section you exclude from the right of holding any office, State or Federal, a class which will be found to embrace the best men within the limits of these States. Do you suppose that the South will agree to that? There may be a few men imported there from some of the eastern or northern States, who have gone there lately, who will consent to it; but the original southern men will never consent to a constitutional amendment which strikes at a large class, indeed, of the entire class within which is to be found the best men and the wisest men within their limits. Mr. McDOUGALL. Do I understand the Senator say that, they include all the beet men and the wisest men of the South? Mr. MUNSON. Some of the best and wisest; I did not mean all. Mr. McDOUGALL. I understood you to say all. Mr. JOHNSON. It includes nearly all, because nearly all of them have been in the Legislature or Congress or held some official station; and all who have held any office of any description, civil or military, under the United States, or under any State, who have been members of Congress or officers of tho United States or members of any State Legislature or of any executive or judicial office of any State, and have taken the oath to support the Constitution as they must all have done, are to be excluded from the right to hold office. Mr. McDOUGALL. I apologize; I did not understand the Senator. Mr. JOHNSON. It is not necessary to apologize, I will say to the honorable member from California, because he hardly ever says any thing that requires an apology, certainly as far as I am concerned. I have upon more occasions than one, Mr. President — and I now barely allude to it — stated what I thought to be the present condition of the southern States. The rebellion being ended, in my view the Constitution of the United States and its laws are just as operative upon each of the States where the rebellion existed as they were before it was commenced. All of those States now are organized; all of them, I believe, except perhaps Texas, have their judiciary, their executive, and their Legislature, and they are now in the undisturbed exercise of the functions of each of these departments — and the three embrace everything that a State has a right to do — and they are organized upon republican principles. The Supreme Court of the United States recognizes them as existing States. The Executive of the United States recognizes them as existing States. This very amendment (for there is nothing on the face of it which excludes the necessity of appealing to the States which have been in rebellion to adopt it) recognizes them as existing States. Now, what are their rights under the Constitution as it stands? The Constitution provides that a census shall be taken at periods of every ten years. You took your census in 1860, and the apportionment was made under the act of 1862. What is there to change that, looking at the Constitution as it is? The very purpose of the provision directing an enumeration of the inhabitants of the States to be taken at each period of ten years was to ascertain the number of the people in each of the States that was to constitute the has upon which the number of' Represent ;dives from each of tlhe States was to be ascertained. That was done by force of the act of 1862, under the census of 1800. Now you propose to change it, and to change it by force of' constitutional provision. Why

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cannot you wait? Why is it not right and just that you should wait until those States are represented in this Chamber and in the other House? Your fathers consulted them, and the weight of their patriotic wisdom in forming the Constitution of the United Slates was universally admitted, and is known to us historically. Why cannot you wait now? On the contrary, you now deny them the tight to appear upon this floor, although they are willing to take the oath of loyalty which you have prescribed; and you undertake to submit a proposition for a change of the Constitution in their absence. How can you know but some man of the South might be found in the councils of the nation who would influence your councils and shape your deliberations as Madison. influenced the council and shaped the deliberations of his associates in the Convention of 1787? Do you not want aid? I should think so. You have not been able yet to agree on any provision for a change which has satisfied you even for a passing day. Mr. President, I have here — and nave alluded to the condition of these States simply for the purpose of introducing it and bringing it before the Senate — an opinion delivered by one of the judges of the Supreme Court very recently, who is one of the admitted lights of that great tribunal, whose patriotism has never been questioned, and cannot properly be questioned, in a case which involves the question, what is the condition of the States? A man by the name of Egan was confined in the State penitentiary at Albany, he never having been in the military service of the United States or of the confederate States, under a sentence by a military commission held in the State of South Carolina to try him upon the charge of murder, and the sentence of the commission was confinement in that penitentiary for life. He made an application to Mr. Justice Nelson for a habeas corpus. The facts were returned, and the judge in the conclusion of his opinion says, what I think bears upon the question I am discussing, what I will read: "For aught that appears, the civil local courts of the State of South Carolina were in the full exercise of their judicial functions at the time of this trial, as restored by the suppression of the rebellion, some seven months previously, and by the revival of the laws and reorganization of the State government in obedience to and in conformity with its constitutional duties to the Federal Union. "Indeed, long previous to this, a provisional governor had been appointed by the President, who is Commander-in-Chief of the Army and Navy of the United States, (and whose will under martial law constituted the only rule of action,) for the special purpose of changing the existing state of things and restoring civil government over the people. In pursuance of this appointment a new constitution had been formed, a Governor and Legislature elected under it, and the State in the full enjoyment or entitled to the full enjoyment of her constitutional rights and privileges. "The Constitution and laws of the Union were thereby acknowledged and obeyed, and were as authoritative and binding over the people of the State as in any other portion of the country. Indeed, the moment the rebellion was suppressed, and the government growing out of it subverted, the ancient possession, authority, and laws, resumed their accustomed sway, subject only to the new organization or the appointment of proper officers to give to them operation and effect. "This reorganization and appointment of the public functionaries, which was under the superintendence and direction of the President, as Commander-in-Chief of the Army and Navy of the country, who, as such, had previously governed the people of the State from imperative necessity by force of martial law, had already taken place, and the necessity no longer existed." Let me repeat a sentence of that decision. The judge says that the State of South Carolina, at the time this trial was had, was “in the full enjoyment, or entitled to the full enjoyment, of her constitutional rights and privileges." One of those rights and privileges was that of being represented in this body and represented in the other House. Now, we keep them out, unless they think proper — at least I suppose that is the course the matter is to take — unless they will submit to adopt a measure which is contrary to what we know they would do if they were not by compulsion forced to take it. Mr. President, I have but a word to say in conclusion. We all have an interest in the peace of the country. We have a deep interest in the peace of the country because it is connected with the prosperity and good name of the country. We have a social interest in being together again as brothers, of presenting to the nations of the world ourselves as one, and exhibiting the characteristics of a great and magnanimous people, who, forgetting recent animosities, discarding the prejudices out of which they grow, and looking to the honor and glory of the nation, come together as brothers, one and all. By the highest of moral considerations, therefore, the termination of the present state of things is demanded. But if we cannot raise ourselves to the elevation of being governed by moral considerations, let mere material considerations animate us; let interest, in its most vulgar sense, control us. Let

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us, therefore, bring back the South so as to enable her to remove the desolation which has gone throughout her borders; restore her industry; attend to her products — those products which enter so materially into the wealth of the whole, so important to the North, and more important, if possible, to the North than to the South, but allimportant to the nation — instead of keeping her in a state of subjection, of dishonoring subjection, and, as I think, without the slightest necessity. Peace once existing throughout the land, the restoration of all rights brought about, the Union will be at once in more prosperous existence than it ever was; and throughout the tide of time, as I believe, nothing in the future will ever cause us to dream of dissolution, or of subjecting any part, through the powerful instrumentality of any other part, to any dishonoring humiliation. Mr. McDOUGALL. It is a work of labor to speak after the eloquent remarks of the Senator from Maryland, who has better expressed what I think than I can express it in any form of words; and yet I think it is due to myself and the opinion I represent (for I think I represent the opinion of my own country) that I should say a few words. They will not be many. There is an intense love for the Union throughout all the country; there was an intense love of the Union in my own country, and there is today, not governed by any form of words, but governed by principles and a high sense of right and justice. I do not care to reason about this thing. It has been reasoned about by eminent men, men who can discourse better than myself, to whom I submit the authority of the argument; but I wish to say that 1866 THE CONGRESSIONAL GLOBE 3031 throughout all the States that belong to this Union there has been always a preponderating loyal sentiment, in the South as well as in the North. Two thirds of the people of the South loved our flag, and hailed it in Tennessee as well as elsewhere. These things have not been well observed. They should have been well observed. The observation has been neglected because for this, that in some departments of New England they thought they were the loyalest of them all. It has been the pride of my life to have lived among all these peoples, and from the South, East, West, and North all were loyal. The accident of controversy changed the condition of society and changed positions in States. I witnessed it. It was witnessed by all men who were observant men. I regretted it, for I thought the South were in error, and I always have. The majority of the people of the South are loyal to the banner of our country, always were. This was not known or recognized well in the North, because they were ignorant of the fact. I was not ignorant of the fact, for I was conversant with it. In the tribulation of a war, with the chances of battle and the chances of sudden death, men differed, and some went one way and some went another. Thus does it always happen in all great civil controversies. I believe there is as much regret today in the South as there is in the North for the great error in which they indulged. Gentlemen seek now what is called reconstruction. There is no such thing as reconstruction. There may be rehabilitation. We may take them to our own house at home, those who wandered away, and again embrace them as brothers. That is a duty imposed upon us by the highest laws and the highest principles that govern the conduct of persons among the best classes of mankind. I do not please to discourse, for all that there is in and about the subject-matter of the present controversy has been discussed with carefulness by men whom I will admit to be my masters. I cannot advise the Senate nor can I instruct them in any form of words; yet it is my duty in my place to state my solemn convictions. This whole measure is supplying the foundations of our institutions. If I have not forgotten myself, wise men built the foundations; wise men built the superstructure, wise men had to do with all that belongs to its edification. If I have not been badly instructed, tinkers have taken the hands and undertaken to do what their fathers would not dare to do, what I with the instructions I have had would not dare to do. It has been said that "fools rush in where angels fear to tread." It has seemed to me that that was the habitude of men who think they are fit to be Senators of a great nation. If I differ with them in opinion I ask their pardon for the difference. We have got a great work to do. The nations are at war. France and Austria and France and Italy are at war. We not a long time hence will be at war with our legions in the field. These things will happen, and they have to be looked at with a bold eye and a firm front. These things are not to be disguised. Why is Maximilian now today maintained as the house of Hapsburg in Mexico? A trick of political strategy, a trick alone, nothing more, nothing less. He has to leave Mexico absolutely; and why has it not been done? Permit me now to say it is the fault of our own Government, for had it been said by the officer who has charge of the foreign relations of this Government, "Noli me tangere," there would have been no occupation of Mexico by Maximilian, or the house of Austria, or Louis Napoleon. These things have to be corrected, and they have got to be corrected by the stern will and the determined force of the men of the country wherein I was born, whose interests I intend to maintain. Again, Mr. President, there are other questions — and as I am speaking I am not making a speech, but I am

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talking — I may ask, what about the trouble on our northern frontier, and what about that trouble in Ireland? Mr. CLARK. The Fenians! Mr. McDOUGALL. Yes, the Fenians. I know something about 1745, and I know something of Vinegar Hill. Now, I will say that in my judgment the less we have to do with that the better. But, Mr. President, we have got to look with great carefulness at the question pending this matter of reconstruction, so called. I do not say reconstruction; I say rehabilitation. These men of the South are, after all, our own brothers. Why should we call them enemies? Is it because we are afraid of them? Is it from a cowardly spirit? Why should we be afraid of them? Why not invite them into our own house? I say to them, come back to our house and sit down with us and dine with us and enjoy our hospitalities. Those who are not willing to say that are violating a great law of truth and a great law of justice, and those who undertake to maintain such a position must themselves be subjugated. I am opposed to subjugation, have been always, but if subjugation has to come, there have been inquiries, who is to be subjugated? I have lived in pretty near all portions of this Republic, and I will not allow the conquered to be subjugated as long as I can spell my own name and dare to call myself by my own nomen. These men were, by the exact contract of the Government, invited to come back and enjoy their rights. They accepted the proposition. When Lee surrendered it was an acceptance of the proposition. By whom is it denied? By brave men? No. Why should they not come back and grasp our hands and say, "We were brothers once; we differed years ago; now we come back to embrace you?" Why should we not accept their embrace? Can any man state why? It is not within the range of thought for expression to state it. I went down once on the Mississippi, at the opening of this war. I met a general of the confederate army, and I took him by the hand, and took him to my stateroom, on board of my gunboat. Said he, "General," throwing his arms around me, “how hard it is that you and I have to fight." That was the generosity of a combatant. I repeated to him, "It is hard," and he and I drank a bottle of wine — or two just as like as not. [Laughter.] This thing of bearing malice is one of the wickedest sins that men can bear under their clothes. I think the general of the confederate army who said that to me — he was an old acquaintance of mine — showed more gallantry in saying it than any person shows who curses them. I took him to my room and treated him kindly. We would have fought at the instant, if it had been a fight, but not being a fight we treated each other generously. I am for reintegration as soon as possible. No, I do not like that term "reintegration." I prefer the term rehabilitation, which was given to us by the Senator from Pennsylvania, [Mr. Cowan.] I say let us rehabilitate them as soon as possible and make them friends and brothers. Otherwise we make them enemies; and for what cause? There is no cause. We are all capable of faults. Who is there that is not? There is a lesson, I believe, taught by the Master: "Let him that is without sin cast the first stone." Wickedness belongs to all people that have got bone and nerves and will. I say this measure is wrong radically, and I say further, it is my opinion that white men of the Caucasian race were made for governors, and that negroes are only fit to be a subject race. I do not care for their subjection here. I wish for them all to be free and away. Nevertheless, not with my consent, not by any force which I can employ, shall they be allowed to have to do with governing me or my kindred. That is one reason why I oppose the whole principle of the measure, and if I fall down, I will fall like Caesar. Mr. HENDERSON. I propose to discuss the first section only so far as citizenship is involved in it. I desire to show that this section will leave citizenship where it now is. It makes plain only what has been rendered doubtful by the past action of the Government. If I be right in that, it will be a loss of time to discuss the remaining provisions of the section, for they merely secure the rights that attach to citizenship in all free Governments. Justice McLean, in the Dred Scott case, said: "Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is a `freeman." So the learned judge held that "Dred Scott," having his domicile in a State different from that of the defendant, and being a freeman, is a citizen within the act of Congress, and the courts of the Union are open to him. From his argument it follows that any person, black or white, born upon the soil of a State, is a citizen of that State, unless he be born in slavery, and if he be born a slave, he becomes a citizen so soon as by the laws of the State he becomes a free man. His opinion leads to the conclusion that citizens of States are necessarily citizens of the United States. All born on the soil free are citizens of the respective States of their birth, and therefore citizens of the United States. Those born on foreign soil, he holds, cannot be invested with rights of citizenship without naturalization. He says further:

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"While I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Constitution was adopted." Judge McLean might have gone further and enumerated other than New England States that acknowledged the citizenship of African freemen at that date. All remember the opinion of' the supreme court of North Carolina, delivered by Judge Gaston, and reported in the case of State vs. Manuel, 4 Dev. & Bat. 20. He said: "According to the laws of this State, all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion. were native-born British subjects; those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery was removed they became persons, and were then either British subjects or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European king to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina, became North Carolina freemen. Foreigners until made members of the State, remained aliens. Slaves manumitted here became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State, are born citizens of the State. The constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax; and it is a matter of universal notoriety that under it free persons, without regard to color, claimed and exercised the franchise until it was taken from free men of color a few years since by our amended constitution." Judge Curtis, in his dissenting opinion in the Dred Scott case, says: "To determine whether any free persons descended from Africans held in slavery were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation. Of this," he said, "there can be no doubt." At the time of the ratification of the Articles of Confederation free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only called citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors on equal terms with other citizens. In conclusive proof of his reasoning on this subject Judge Curtis cites the action of Congress when framing the Articles of Confederation. The fourth article, it will be remembered, provides "that the free inhabitants of 3032 THE CONGRESSIONAL GLOBE June 8, each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." While this provision was under consideration, June 25, 1778, the South Carolina delegates moved to insert the word "white'' after " free" and before " inhabitants," thereby securing the privileges only to white persons. The motion was voted down by eight States to two, one State being divided. This proves beyond doubt that the privileges and immunities of citizenship were at that time willingly accorded to all men who were free, who were not slaves, whether white or black. Judge Curtis, after stating that in five States at least free negroes enjoyed the elective franchise when the Constitution was adopted, concludes very justly that they became "citizens of the new Government," and "so in every sense part of the people of the United States," and "among those for whom and whose posterity the Constitution was ordained and established." "There can scarcely be a doubt that all persons residing in the several States at the time of the adoption of the Federal Constitution became citizens of the United States, and no State thereafter can deprive them or their posterity of this right. The power to naturalize is exclusive in Congress, and the foreigner naturalized becomes a citizen of the United States, and necessarily is a citizen of the State in which he is domiciled. The posterity of such foreigner so domiciled becomes a citizen of the State and of the United States by virtue of his birth alone." If the opinion of Judge Curtis be open to criticism at all it consists in the conclusion to which he arrives—

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"That it is left to each State to determine what free persons born within its limits shalt be citizens of such State, and thereby be citizens of the United States." He leaves the inference that Federal citizenship may be given or taken away by State action. He admits that being a State citizen confers the Federal right. If once the character of citizen of the United States attaches, no State, I apprehend, can take it away. This error of Judge Curtis is shown in the opinion of the court in the same case where it is said: “If persons of the African race are citizens of a State and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them: for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the constitution and the laws of the State notwithstanding." Story, in his Commentaries on the Constitution, says: "A person who is a naturalized citizen of the United States by a like residence (tho same required of nativeborn) in any State in the Union, becomes ipso facto a citizen of that State."— 2 Story, secs. 1693 and 1694. In another place he says: "It has always been well understood among jurists in this country that the citizens of each State constitute the body-politic of each community, called the people of the States, and that the citizens of each State in the Union are ipso facto citizens of the United States." Rawle, in his work on the Constitution, page 86 uses the following language: “The citizens of each State constituted the citizens of the United States when the Constitution was adopted. The rights which appertain to them as citizens of those respective Commonwealths accompanied them in the formation of the great compound Commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former: and he who was subsequently born a citizen of a State became at the moment of his birth a citizen of the United States." Chancellor Pent says: "If a slave born in the United States be manumitted, or otherwise lawfully discharged from bondage, or if a black man be born within the United States and born free, he becomes thenceforward a citizen."—2 Kent's Commentaries, fourth edition, p. 257, note. Chief Justice Taney, delivering the opinion of the court in the Dred Scott case, says: "It is true every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens an the several states, became also citizens of this new political body." This opinion, then, concedes to all members of the several State communities, and to those who should afterward, by birthright or otherwise, become members thereof, all the personal rights, privileges, and immunities guarantied to citizens of this "new Government." In fact, the opinion distinctly asserts that the words "people of the United States" and “citizens” are a synonymous terms." They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. The great error into which Chief Justice Taney falls consists in the fact that he arbitrarily excluded all negroes, though free, from this sovereignty. He unfortunately rejected the text of the Constitution itself, and sought judicial light in what he erroneously supposed to be "the legislation and histories of the times." Instead of construing a plain instrument as its language directed, in order to secure freedom and happiness to those who made it and their posterity, he went back seventy years to explore "the State of public opinion" which then existed in "relation to" what he termed "that unfortunate race," (the negroes,) and came to the conclusion that for more than a century before that time they had been regarded by civilized and enlightened nations "as beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." He entirely ignored the fact that in many of the States at that time free negroes enjoyed every privilege and immunity of citizenship. Indeed, the fact is perfectly clear, established beyond all question by "the legislation and histories of the times," that free negroes, in both free and slave States, enjoyed full citizenship, and yet Judge Taney says "it cannot be supposed that they intended to secure to them rights and privileges and rank in the new political body throughout the Union which every one of them denied within the limits of its own dominion." In forming his opinion he abandoned the Constitution and the Declaration of Independence, for he distinctly says "the general words contained in the Declaration would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood." He distinctly admits that he put aside these words, as a part of the history of that

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period, and based his conclusions upon a certain supposed state of feeling which in reality did not then exist — upon something which he called history, but which was really a perversion of history. He admits that the Constitution was made for those who framed it and their posterity; in other words, that "every class and description of persons" recognized as citizens in the several States became a part of the political body known as "the people of the United States." This would clearly include the free negroes who enjoyed the full rights of citizenship in nearly half of the States of the Union at that time. Being citizens, then, of their respective States, they necessarily became citizens of the United States, and having become citizens of the United States, no State can divest them of that high privilege. No power inferior to the national sovereignty could deprive them of United States citizenship. They therefore remained citizens of the States in which they might reside, and when they desired to remove from one State to another they had a right to claim in the State of their domicile the privileges and immunities of "citizens in the several States." Sargent, in his work on Constitutional Law, at page 111, commenting on the clause giving jurisdiction to the Federal courts between citizens of the different States, says: "This citizenship means a residence or domicile in a particular State by one who is a citizen of the United States." We have now seen that each judge in the Dred Scott case and all the commentators assert that State citizenship by the adoption of the Constitution became Federal citizenship; and Mr. Sargent says that when one is naturalized he becomes a citizen of the United States, and a residence or domicile in a State gives him State citizenship. The Federal Constitution failed to define United States citizenship, and equally failed to declare what classes of persons should be entitled to its privileges. If those persons who enjoyed "all the privileges and immunities" of State citizenship at the adoption of the Constitution were not by the Constitution made citizens of the United States, it would be difficult to ascertain who were to be considered such. To deny it in such cases would lead to a total denial of such a thing as United States citizenship at all. But that cannot be the case, for, in defining the qualifications of a Representative in Congress, the Constitution requires that he shall "have been seven years a citizen of the United States." The same instrument, prescribing the qualifications of a Senator in Congress, declares that he "shall have been nine years a citizen of the United States." It is also fixed in the instrument that no person shall be President except a "natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution." These clauses show that such a thing as United States citizenship existed at and prior to the time when the Constitution was adopted. Another curious fact may be seen in this, that while the Senator and Representative must be a citizen of the United States at the time of their election, it is only necessary that they be "inhabitants" of their respective States. One may be a Senator or Representative in Congress before he has acquired the rights of citizenship in his State. But he must have once been a State citizen. For instance, if an individual, seven years before the adoption of the Constitution, had been recognized a citizen of one of the States, acquiring the right either by birth or by naturalization therein, and had continued to remove from one State to another, failing to remain in any one of them long enough to acquire "all the privileges and immunities" of a citizen therein, he would yet have been a citizen of the United States and eligible to a seat in Congress from the State in which he was domiciled at the time. And so would one have been eligible to the Senate who nine years before had enjoyed State citizenship in one of the States under the Articles of Confederation. In the clause fixing the qualifications of the President, the language is changed from " citizenship" to "residence." It says no person shall be elected President who shall not have been "fourteen years a resident of the United States." Fourteen years went back to the period of the battle of Lexington. It must be that a higher evidence of attachment to the country was intended to be secured in the President than in a member of Congress, but unless "residence'' in the States be regarded as furnishing that evidence equally with citizenship itself, then the qualification of the President is not of so high a character as that of a member of Congress. It cannot be otherwise than that all free natural-born residents of the States and all who had been naturalized by the States became, at the adoption of the Constitution, citizens of the United States. Their descendants of course followed their condition. All born of such parents became citizens at their birth. The States, after the adoption, could no longer naturalize. This power, by the Constitution, was given to Congress. But now upon the moment of naturalization the foreigner becomes a citizen of the United States, and may become a citizen of any one of the States by the same residence and under the same circumstances as native-born citizens of other States. Now, if there be any force in the reasoning to which I have referred, or any weight in the authorities cited, United States citizenship is just what it is defined to be in the first section of this amendment. I mean that those persons who are to be made citizens by this amendment are the persons, and none others, who have ever been

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citizens of the United States 1866 THE CONGRESSIONAL GLOBE 3033 under a fair and rational interpretation of the Constitution since its adoption in 1789. I now proceed to consider briefly the second section of this amendment. It materially changes the Constitution as respects representation in the lower House of Congress. The same change, of course, will be produced in the Electoral Colleges. The Constitution, as it now stands, apportions Representatives and direct taxes among the States according to the number of their inhabitants; but this number is to be ascertained by taking the whole number of free persons, male and female, including apprentices, and adding thereto three fifths of the slaves and excluding all Indians not taxed. It is upon this enumeration, ascertained by the census every ten years, that Representatives have been apportioned to the States since the formation of the Government. At the time the Constitution was framed the large slave-holding States desired that the whole number of their slaves should enter into the basis of representation. This was resisted by States having few or no slaves. The question was one of great difficulty. It was finally compromised, however, by estimating each slave as three fifths of a person for purposes of representation. But it was insisted that if he were three fifths of a person for representation he should also be three fifths of a person for purposes of taxation. The controversy was therefore settled by imposing direct taxation upon the States in the same proportion in which they might be represented upon their slave population. The clause was so adjusted that whenever a slave became free he necessarily became a full person for purposes of representation and taxation. He then was included in the list of "free persons," and not in that of "other persons." Therefore, whenever a State emancipated its slaves, as many did before the late war, it increased its representative power in Congress and fell subject to increased taxation to the extent of two fifths of all persons so emancipated. The recent war of rebellion has terminated in the abolition of slavery in all the southern States. This emancipation, of course, was against the will of those States; but it none the less increases their representative power because it was forced on them. This provision of the Constitution, like many others, looked to the ultimate extinction of slavery in all the States. It was so worded, of course, as to be adapted to either state of affairs. It compromised a present difficulty growing out of a state of slavery, but anticipated a period when it would cease to exist. When the former slave became a free man he was to become one of the people. He ceased to be property, and became a person. I confess I can see no good reason why the negro thus emancipated should be excluded from the basis of representation. I believe that no one in the Federal Convention asked the exclusion of any person, white or black, citizen or alien, provided he were a freeman. Indeed, in the fifty-fourth number of the Federalist, Mr. Madison, commending the Constitution to the people, says: "It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State." And in the same connection he remarks: "That if the laws were to restore the rights which have been taken away the negroes could no longer be refused an equal share of representation with the other inhabitants." For myself, I cannot refrain from expressing regret that it becomes necessary for me to give apparent endorsement to a principle contained in this second section. It departs from the views of the framers of the Constitution in several particulars. The first prominent objection is that it separates representation from taxation. If it were proposed to base taxation upon wealth instead of numbers it would be much better. Mr. Madison said that the rule of representation referred to the "personal rights of the people," and therefore should be based upon numbers, irrespective of their political condition. But he remarked that the rule basing taxation upon numbers is "in no case a precise measure, and in ordinary cases a very unfit one." The amendment, as proposed, does not base taxation upon wealth, but leaves the Constitution in this respect as it now stands. If direct taxation be hereafter levied it will be apportioned among the States, according to their numbers, including free negroes as well as all other persons. If I believed it probable that direct taxation would be resorted to in the future legislation of the country, nothing could induce me to support this proposition. A second objection to it consists in the argument furnished, that we admit the necessity, or at least the propriety, of excluding arbitrarily a freeman from the elective franchise; and it will be contended that we render a present doubtful power of the States to do so certain. A third objection which is urged consists in the fact that while it inflicts punishment for the exclusion of the negro from the ballot, it permits the white citizen and the alien inhabitant to be excluded by the States without loss of representative power. A fourth objection will be urged that it presents too great an incentive to the States to extend suffrage to persons who are ignorant and uneducated for the mere purpose of acquiring power, inasmuch

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as those who may be excluded under this provision on account of the want of intelligence will be equally excluded from the basis of representation. The amendment fixes representation upon numbers, precisely as the Constitution now does, but when a State denies or abridges the elective franchise to any of its male inhabitants who are citizens of the United States and not less than twenty-one years of age, except for participation in rebellion or other crime, then such State will lose its representation in Congress in the proportion which the male citizen so excluded bears to the whole number of male citizens not less than twenty-one years of age in the State. The original amendment reported by the committee of fifteen, which passed the House of Representatives and was defeated in this body, put the basis of representation on numbers also, but it differed from this in some important particulars. It provided that— "Whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation." That proposition seemed to admit in express terms the right of the States to exclude from suffrage on account of color. The words "race or color" are left out of this proposition entirely. The States under the former proposition might have excluded the negroes under an educational test and yet retained their power in Congress. Under this they cannot. For all practical purposes, under the former proposition loss of representation followed the disfranchisement of the negro only; under this it follows the disfranchisement of white and black, unless excluded on account of "rebellion or other crime." The former might have had the effect to keep the negro uneducated, in order that he might be permanently excluded under that pretension. There was to be no penalty on such exclusion, and if prejudice against race exists to the extent supposed in the southern States, perpetual ignorance must have been the fate of the negro unless Congress could have interfered to educate him. If equally educated with the white man, no possible pretext remained for the denial of suffrage except the color of his skin; and if he were excluded for race or color, he no longer constituted a part of the representative population. Under the former proposition the exclusion of ten negroes in a State because of race or color excluded from representation all persons of that race or color, though they might number half a million or more. This encourages to give the ballot, because it gives power in the same proportion as the ballot is given. In some respects, therefore, this proposition is far superior to the one defeated. No amendment can be offered on this subject which would not be liable to objections, but this is not subject to many of the harsh criticisms to which the other was. I have already said that no one in the Federal Convention asked that a freeman should be excluded from the basis of representation, and that I could see no good reason for excluding the negro now. The same reason, however, which requires that he should be counted in the basis of representation equally demands that he should constitute a part of the political sovereignty in the several States. It is true that no one in the Federal Convention asked that the free negro should be excluded from the representative basis, but is it not equally true that the distinguished statesmen of that day admitted the citizenship of the negro and acknowledged his right to suffrage in the States? I have already shown that in five States of the Union the negro enjoyed the right to vote when the Constitution was adopted. He was therefore a citizen in those States, and the Constitution declared that, being a citizen in one State, he should have the privileges and immunities of citizenship in every other State. Having the right, therefore, to vote in one State, the right would attach to him on equal terms with the white man whenever he removed his domicile to another State. Mr. Madison expressed confident belief that the people in the several States would not abridge the rights of suffrage, but would rather extend them. Such, no doubt, was the general belief. If these anticipations, in connection with the hope of early emancipation, had been realized, we should long since have had a Government founded upon the consent of the governed. Had such been the case we would have had no war. The war came, however, and brought with it the bitter fruits which we have gathered during the last five years. The Virginia convention, on the 12th of June, 1776, uttered the sentiment of patriotism, and proclaimed the true theory of republican government, when it declared that "all men having sufficient evidence of permanent common interest with and attachment to the community have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected; nor bound by any law to which they have not in like manner assented for the public good." No one pretends now to doubt that slavery and the discussion growing out of it produced the late war. Slavery is the natural result of a certain degree of inferiority. The father is the patriarch and governor of the family because of this inferiority. Until the child is twenty-one years of age the father has the power of correction and enjoys the fruits of his labor. This rests upon the admitted fact that the minor is incapable of taking proper care of himself. The father is bound only to treat him with humanity, but has the right to control his person and take his

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earnings. Slavery proceeds from the same argument. It is assumed that the black man is not only inferior to the white man, but incapable of self-government. Admit the truth of this proposition and slavery becomes justified by the highest attributes of justice and humanity. Mr. A. H. Stephens, the wisest of the southern statesmen, fully comprehended this theory when commending the confederate constitution to the people of Savannah in 1861. He said "the prevailing ideas entertained by him [Jefferson] and most of the leading statesmen at the time of the formation of the old Constitution were, that the enslavement of the Africans was in violation of the laws of nature; that it was wrong in principle, socially, morally. and politically.'' He said, further, the new constitution has put at rest forever all the agitating questions relating to our peculiar institution — African slavery as it exists among us — the proper status of the negro in the form of our civilization. This," he repeats, "was the immediate cause of the late rupture and the present revolution." Again, he says, the corner-stone of the new 3034 THE CONGRESSIONAL GLOBE June 8, Government "rests upon the great truth, that the negro is not equal to the white man." Speaking of the anti-slavery fanatics of the North, he said, in the same speech, "Their conclusions are right if their premises are; they assume that the negro is equal, and hence conclude that he is entitled to equal privileges and rights with the white man. If their premises were correct their conclusions would be logical and just; but their premises being wrong, their argument fails." The position taken by Mr. Stephens is certainly correct. If the negro be inferior to the white man, and incapable of self-government, modified slavery results as a matter of course. The southern argument, asserting the divinity of slavery, proceeded from this idea. We have declared that slavery in no form shall exist hereafter. In so declaring, we necessarily deny the negro's incapacity to take care of and govern himself. Now, if the abolition of slavery is not to be followed by such privileges and rights as will maintain and perpetuate the freedom of the emancipated, it amounts to nothing. It is "as sounding brass or a tinkling cymbal." Mr. Stephens said that this idea of inferiority, upon which slavery was founded upon the one side, and the opposite idea of man's equality on the other, carrying with it equal rights and equal privileges, caused the late war. It was first a contest of opinion, then a contest of force. In the overthrow of the rebellion one idea triumphed, and necessarily the other was vanquished. False ideas, then, and false teachings had corrupted our institutions; These teachings interfered with the harmony of the Government. They had produced disease. That disease had developed itself in a destructive war. It was for us, when violence had ceased, when the paroxysms of acute pain had been allayed, to consider whether the cause of disease should be removed entirely or be left in the system to fester again. I think it somewhat unfortunate that Congress was not in session when armed hostility ceased. It is possible that, had it been in session, it would have done nothing. It had certainly been derelict in failing to provide for a contingency, which for many months before its occurrence it was evident must soon happen. And why did it fail thus to provide? For the same reason that produced the war. Because we could not agree as to the status of the negro. We feared to grapple with prejudice and did nothing. President Johnson, finding the rebel lion overthrown and himself just advanced to the executive power of the nation, naturally enough felt a desire to see the Union at once restored. He had borne a prominent part among the friends and supporters of the Government, and it would be by no means strange that he were possessed of an ambition, laudable and honorable within itself, to take a yet more prominent and exalted position in rebuilding the shattered columns of the Union. The war had been waged that the States might be kept in their proper relations to the Government. It was the wish of every earnest patriot in the land to see complete restoration, and to see it as soon as possible. It had been a fearful period, those four years of anxiety and dread. The loyal people never desired the war. They accepted it simply as a necessity. They went to the battle without malice toward their enemies, but simply to save the Union, and in so doing to secure the happiness and even safety of both North and South. Hence when victory came the first shout of exultation was immediately followed by an exhibition of charity and magnanimity toward a fallen foe which brought to the national name more true glory than all the achievements of war, and gave each hero a fame that will live when his most daring deeds of martial prowess shall have been long forgotten. The assassination of Mr. Lincoln checked but did not subdue this feeling of mercy. The incoming President took counsel of his Cabinet advisers as to the course of policy to be pursued. They were substantially the same who had devised a plan of restoration with the lamented Lincoln in 1863. At that time not more than three of the seceded States could possibly be drawn into any scheme of restoration. The rebel government held undisputed sway over all the others. The erection of loyal governments in these three States at

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that time should have been regarded in the light of a military measure, a means rather to crush out organized treason by fostering a counter-power in its midst. Mr. Lincoln's plan was certainly not designed to build up permanent institutions to exist in a time of peace, founded upon the consent of one tenth of the inhabitants. An oath had been prescribed for the voter, good enough for that period and well calculated for the purposes designed, but wholly unfitted to the spring of 1865, when the armies of Lee and Johnston had returned home and the reestablishment of the Union had become a fixed fact. They had been stripped of the musket. They, of course, expected for the time being to be deprived of the ballot. It was the ballot in the seceded States which had made their rebellion so formidable. It had given the rebellion form and consistency. It had clothed treason with legal sanction. It gave the insurgents a government and lent organized purpose to every movement. The ballot had previously aided treason only because the ballot was partial. If even one half of the negroes could have voted in the seceded States in 1861 secession would have been lost in each one of them. Secession was successful at that time, because it was entirely in the hands of those whose fancied interests and whose real prejudices had brought on the war. One would suppose that when armed violence had been suppressed entirely, they who had commenced it should give a full and not a partial acceptance to the situation. I think the South at first was willing in good faith to do so. They expected nothing else. The more intelligent among them admitted that the whole case submitted to the arbitrament of the sword had been decided against them. They did not cease to believe in secession but the point was decided and they yielded to the decision. They did not believe that slavery should be abolished, but slavery was involved in the case as made up, and they yielded, as yields the unsuccessful suitor in the highest court of judicature. They did not believe that equal rights and equal privileges should be accorded to the negro. But this question they knew was involved in the contest also. The premises taken by the supporters of the Union were proved to be correct, and now, in the language of Mr. Stephens, the whole conclusion was "logical and just." The Cabinet, however, had committed themselves to a policy, and now came that thing so dangerous always in human conduct — pride of opinion, attachment to preconceived notions. It may be possible that the mind, like machinery, runs best in old and worn grooves. It is certainly true that the change of condition in public affairs made no change in policy. What had been an acknowledged temporary arrangement was now to be made a permanent institution. A plan of restoration was adopted which put the political power of the South right where it was at the beginning of the war. Many persons think that this was designed, and the President and his Cabinet wished to build up a new party, having its strength in the old rebel element. I cannot think so. I do not think so. I think they were actuated by the best of motives, but committed a blunder. They were certainly too hasty, but I attribute their haste, first, to that ambition of which I have spoken, and second, to a false pride of opinion, with which man's happiness must ever contend until his whole moral nature has been reconstructed. So soon as the southern people found political power again in their grasp, the spirit of humility gradually disappeared, and they conceived a hope that the judgment rendered against them in the tribunal of arms might now be arrested. They supposed that something might be saved from the wreck of their political fortunes, which, properly invested, would ultimately restore them to their former place and grandeur in the Government. If slavery could be saved, this were an investment of the most priceless character, but the President said, "Slavery shall not be saved." For this the country owes Andrew Johnson a debt of gratitude. They then thought if the technical right of secession, even, could be admitted in the words of their conventional proceedings, it would be so much laid up for the future. The President said "that no words must be used upon which an inference could hang favoring the right of secession." In this Andrew Johnson was right, and no true man will withhold his praise. They next endeavored to save treason from odium by providing that the debt contracted in its perpetration should be acknowledged and paid. To this the President gave his refusal, and again the country is thankful to Andrew Johnson for this act of true statesmanship. For these acts the President was denounced as a tyrant. I only regret that his tyranny did not go far enough. He stopped at the precise point where the greatest degree of moral courage was needed. Southern prejudice against race had started the war, northern prejudice had prolonged it. Southern prejudice, if unsustained, would have given us a war of but short duration. Northern sympathy came to its aid, and doubled its miseries. At this period the South was ready to cast off its prejudices if the demand had been made. The President and his Cabinet had boldly conducted us to the overthrow of southern rebellion. But they now cowed before this spirit in the North which had aided and prolonged the strife. The South saw its opportunity and promptly collected together all the elements of prejudice and hatred against the negro for purposes of future party power. They denied him the right to hold real or personal property, excluded him from their courts as a witness, denied him the means of education, and forced upon him unequal burdens. Though nominally free, so far as discriminating legislation could make

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him so he was yet a slave. It was at this period, as I have said, that the President and his Cabinet faltered. If they had put their veto upon these measures, their voice would have been the law; the South would have been saved from their worst enemies, themselves, and the whole country would have felt secure in the beginning of a better era. But they were encouraged by this indecision and want of moral firmness in the President and his Cabinet, and adopted a system of laws which doomed the negro to hopeless ignorance, degradation, and misery. They not only denied him the ballot, but denied him the commonest rights of human nature. If this thing were to be continued there was no hope left for his future amelioration. He must be a degraded outcast. The only change made was in the name: he was once a slave, and men called him a slave; men now mocked his condition by calling him a freeman. Thus encouraged the southern States became insolent in the immediate prospect of power, and presumed to insult the loyal sentiment of the country by conferring honors upon the most obnoxious leaders of their rebellion. They even elected and sent to Congress the men who have held the highest places in the rebel government. In this condition of affairs Congress convened. The first thing, of course, was to close the doors of Congress against this rebel invasion. The next was to do a simple act of justice to the negroes and poorer whites of the South, who had been always loyal to the Government. For that purpose, "the act to establish a Bureau for the Relief of Freedmen and Refugees," called the " Freedmen's Bureau bill," and the "act to protect all persons in the United States in their civil rights," called "the civil rights bill," were presented to Congress and adopted. Whatever may be said against these measures, and much has been said, their sole object was to break down in the seceded States the system of oppression to which I have alluded. Their only effect was, after feeding 1866 THE CONGRESSIONAL GLOBE 3035 the starving white and black, to give the right to hold real and personal estate to the negro, to enable him to sue and be sued in courts, to let him be confronted by his witnesses, to have the process of the courts for his protection, and to enjoy in the respective States those fundamental rights of person and property which cannot be denied to any person without disgracing the Government itself. It was simply to carry out that provision of the Constitution which confers upon the citizens of each State the privileges and immunities of citizens in the several States. These measures did not pretend to confer upon the negro the suffrage. They left each State to determine that question for itself. Their highest aim was to secure what the lawyers call civil rights to every person within the jurisdiction of the Government. The necessity for these or similar measures was imperative. To have failed in this duty would not only have rendered the results of the war perfectly abortive, but would have completely withered the laurels we won in its successful prosecution. The President saw fit to veto those measures, supposing them to be unconstitutional. I never doubted the power of Congress to pass them. I never doubted that the Government would be disgraced if it failed to establish for the private citizen the muniments of freedom intended to be secured by them. I did have my doubts whether this was the best way to accomplish the end. It would necessarily bring about a conflict between State and Federal jurisdiction. I knew it would meet with resistance in the States. I thought it would be repulsed, as even beneficence itself is always repulsed when forced on an unwilling community. I feared that in the conflict to arise the rights of the weak would be lost sight of, and finally sacrificed. I then believed, and do now believe, that the necessity for these measures is an unfortunate necessity. That necessity cannot exist where the local government is founded upon the consent of the entire people. The people of Georgia know what laws are best for their own happiness and security. But when one half of the people legislate for all this truth ceases in its application. Let all have a voice in making the law and the popular heart will execute it, because the liberty of all consists in its enforcement. It is only where political power is in the hands of a favored few that oppression can be practiced. It is only where oppression exists that the agents of a superior power are needed for protection. Give the negro the ballot and he will take care of himself, because his interest requires it. Give him a bureau agent, and he will sometimes be plundered, because his interest and the interest of the agent may differ. At an earlier day in the session I offered a proposition which I thought would secure these ends. It was a constitutional amendment in three lines. It prohibited the States, in prescribing the qualifications of voters, from discriminating against the negro on account of his color. Had this been adopted, by its own force it made him a citizen in each State, because it gave him the highest prerogative of a freeman. There would then have been no necessity for declaring who are citizens of the United States, for every freeman would have worn the honored badge of citizenship. It would then have been useless to declare that no State shall abridge the privileges and immunities of citizens of the United States, for those simple words presented an effectual bar against it. It would have been superfluous to interdict the States from taking life, liberty, or property from the citizen without due

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process of law; for liberty being first given, the citizen can protect his own life and property. The provision securing equal protection of the laws against inimical State legislation might then be dispensed with as wholly unnecessary. The very section we are now considering, with all its difficulties of verbal adjustment, might be abandoned and the Constitution be left, in that respect as our fathers made it. The necessity for abridging representation would have ceased, for both representative and elector would have been loyal. These few words would have accomplished directly what this proposes to accomplish indirectly after years of political strife, in which truth and conscience and patriotism are too often sacrificed to the attainment of success. Had that been done it were useless to enact an exclusion from office of the leaders of the rebellion. Where all men are interested in the Government, none but peaceful revolutions are needed. Reforms are worked at the ballot-box. Government then, and only then, becomes a divine institution. Rebellion against it not only injures the public weal, but it shocks the moral sense of a contented and happy people. They who lead such rebellions are at once visited with public odium. In public estimation traitors then stand as the greatest of criminals. They are looked upon as monsters in human shape. Cain bore the mark of one crime —murder; but a people perfectly free will never fail to stamp traitors, as they deserve to be stamped, with the mark of all crimes. If that proposition had been adopted we need not pledge our faith to the payment of the public debt. That faith would have been best secured in the honest convictions and the moral sense of the people. Had it been adopted, we need not have proclaimed by constitutional enactment the invalidity of the rebel debt, founded as it is upon contracts made in contravention of public policy, against the best interests of the State, in violation of the laws of the land, and for the purpose of enslaving the very men whose substance would be required to pay it. But, Mr. President, in all this I may have been mistaken. The presumption is, I was mistaken, for a large majority has ruled against me. I yet have faith in its ultimate success. Necessity, if nothing else, will soon bring believers. Believers may be now few, but as through the faith of the Hebrew mother, so again they will soon be "many as the stars of the sky in multitude, and as the sand which is by the sea-shore innumerable." The old saying is true, that we must take things as we find them. I am somewhat an optimist, and this at last maybe the best. The negroes during the war were our faithful allies. They are now steeped in poverty and most remain so unless Congress does something to help them. The poor whites of the South are not in a much better condition. State governments are already in the hands of those hostile, through prejudice or interest, to their improvement or amelioration. The legislation of these governments even now frets with oppression. Within the scope of State jurisdiction there is no such thing as equality in the law. The State courts are already deciding the "civil rights bill" to be unconstitutional. The validity of all laws must depend at last upon human judgment. Judges, even in the highest courts, are but mortals. Should the Supreme Court of the United States affirm the judgment of these inferior tribunals, the present period would be no better for the rights of the negro than that when the Supreme Court once before supposed he had no rights which the white man was bound to respect. Should such be the action of this tribunal, the problem would at once be presented, whether four million people can be peacefully held nominally free, but actually slave. If it be true that these negroes are not susceptible of education; if they are more nearly allied to brutes than to men; if as free men they can add nothing to the wealth of the country; if they are unfit to take part or lot in the State governments, it may be asked, why should they be represented in Congress? If they are incapable of choosing a representative for themselves, why should those who treat them as inferior beings; and almost deny their humanity, claim the right to represent them as citizens? It is said that women and aliens in the North are retained in the basis of representation, why should not the negroes be retained in the South? It may be answered that these women and aliens are treated as human beings; they are regarded as persons and not dumb brutes; they enjoy the right to acquire property, to enter the courts for its protection, to follow the professions, to accumulate wealth, whereby national resources are increased and national power augmented; they are a part of the people. The road to the ballot is open to the foreigner; it is not permanently barred. It is not given to the woman, because it is not needed for her security. Her interests are best protected by father, husband, and brother. The negro is the object of that unaccountable prejudice against race which has its origin in the greed and selfishness of a fallen world. That prejudice belongs to an age of darkness and violence, and is a poisonous, dangerous exotic when suffered to grow in the midst of republican institutions, where we boast an asylum for the oppressed of every land. Why do we shudder to meet this question? Nearly five million people, strong, vigorous, and inured to labor, are in your midst, partially without civil, wholly without political rights. What will you do with them? You have three alternatives before you, and only three. You must kill them, colonize them, or ultimately give them a part of your political power. For this last alternative the country is not, yet prepared. With the two former humanity and common sense will successfully struggle.

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But I am told that this proposition will operate as a penalty on the South. Suppose it were a penalty from which she could not escape, would it be an adequate punishment for the crime committed? Might it not, if justice untempered with mercy were consulted, be made a permanent rule until the public debt were paid and the curses of treason were effaced from the land? If it be a penalty, it is one which the offender may escape. It is likened unto the penalties of the divine law. The choice of good and evil is before them. The indulgence of evil is followed by punishment, because it is an inexorable law of man's organization. The choice of good is followed by happiness, contentment, prosperity. It is thus wisely ordained, that interest may constrain to duty, in the exercise of which the world is advanced and man is ennobled. This may be called a penalty, but a simple net of justice will fully discharge it. It is equal, for it applies to all the States. Another advantage consists in the fact that it compels the moral and intellectual culture of the lower classes. If not properly qualified for the exercise of the ballot, the State governments may fall into the hands of incompetent and dangerous persons. Until all can vote, all cannot he represented. All cannot safely vote until a large majority are educated. This provision, then, may constrain to justice in a double sense. The strong argument in favor of it is, that as the Constitution now stands four white voters in the South, formerly soldiers in Lee's army, will be equal in representative power to six of those who followed Grant from the Rapidan to Richmond or Sherman from Atlanta to the sea. I therefore accept it, in the hope that the South, seeing its true interests, will, even before the next census, learn to seek justice for themselves in the exercise of the golden rule. The third section of this amendment provides that no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof. But Congress may by a two-thirds vote of each House remove the disability. The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to 3036 THE CONGRESSIONAL GLOBE June 8, come. It strikes at those who have heretofore held high official position, and who therefore may be presumed to have acted intelligently. When the section is closely scrutinized, it will be seen that comparatively few men will fall subject to the exclusion. It does not, as sometimes supposed, reach all who may have taken an oath to support the Constitution of the United States. The civil officers of the Federal Government, previous to the war, were comparatively few. With the exception of postmasters, perhaps not a thousand are yet remaining in the South. The Army and Navy of the United States were very small before the war, and I presume it is doubtful whether three hundred military and naval officers yet survive the rebellion who will be affected, and these will be chiefly officers who were educated in the Military and Naval Schools at the expense of the Government. They not only forfeited their oaths, but committed an act of ingratitude which forever stamps them as unfit for public position. I have but little idea what number of persons will be reached as former members of Congress. The number cannot be very great. Those who were actuated by convictions of duty, and believed themselves right in their rebellion, boldly went to the front and fell victims to their error. Those who sinned against light and knowledge, knowing the iniquity of their conduct, exhibited such want of moral worth as to forbid an honest discharge of public duty hereafter. The executive and judicial officers of the seceding States are supposed to be men, not only of intelligence, but of distinguished abilities. These persons are not numerous, they will not likely exceed two or three hundred. Some of these took so prominent a part, and were so relentless and vindictive in their persecutions of Union men, as to have become especially obnoxious to the loyal sentiment of the country. It will be best for the South itself to discard all such men for the future. Much the largest class of persons to be excluded under this amendment will be found among the former members of the State Legislatures. What may be the probable number I have but little idea. Perhaps fifteen hundred or two thousand will cover all classes debarred under this amendment from the privilege of holding office. If we deduct from this the number who will be able to prove themselves innocent when charged with complicity with the rebellion, we shall have two or three hundred left, consisting chiefly of those who, as officers of the Army, educated at public expense, surrendered their commands into the hands of the enemy, or who as members of Congress met in conclave under the roof of the Capitol to plot treason against a Government which had honored them, and which daily paid them for acts of treachery done under the sacred name of public duty. Those fierce "furies of the guillotine," who came into public life under the reign of terror, inaugurated in 186l, and who sought and obtained the offices of the confederate government

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because their natures were as wicked and devilish as the treason they supported, will yet be able to hold office, State and national. They are not disqualified by this section. They never took an oath to support the Constitution of the United States, for they were unnoticed until the reign of crime commenced. They were born into public life with the confederate constitution. They were turbulent, dangerous men, who found no favor in times of peace. It required commotion and storm to bring them to the surface. The rebellion was in a large measure their work. It required daring and heartless men to conduct it, and they soon became its leaders. After the adoption of the amendment we shall see these men in public office. The whole country will conclude that those who are disfranchised are no worse than those who yet lead southern sentiment, and Congress, by a vote of two thirds, will remove the disability. I have no doubt that this will be the conclusion of the whole matter. I would not be understood in what I am now saying as complaining of the provision. I would perhaps be more merciful still, simply because no adequate punishment can be devised for the wickedness of the offense. We cannot punish all. To discriminate among those who are equally guilty wears the garb of injustice. We cannot even punish those who are guilty of the highest crimes, crimes which give treason its darkest hue. To do so would stamp the nation with cruelty; therefore we cannot begin without injustice. We must be merciful. I am willing to make the highest virtue of that necessity. There is so much guilt as to render the task of punishment hopeless. Hence the provision depriving even the worst rebel leaders of the ballot has been wholly abandoned. Lee, Johnston, Wade Hampton, Moseby, and even Jeff Davis, are left as qualified electors, competent to vote for State officers and members of Congress. Moseby, after the passage of this amendment, may be legally elected to any office in the gift of the Government. Distinguished Senators tell us that this deprivation of office is a punishment. If it be a punishment, it is so insignificant when compared with the crime that it is scarcely entitled to the name. They tell us that it is a bill of attainder. Suppose it were; are the people in their sovereign capacity prohibited from passing a bill of attainder? The people, in forming a Constitution, said that Congress should pass no such bill. They surely possessed the power to authorize Congress to do so. But for the similar prohibition on the States each State could pass a bill of attainder. The people reserved the power to themselves. They surely can amend their Constitution. If they had the power originally to declare that a member of the lower House of Congress shall have been seven years a citizen of the United States, a Senator nine years, and the President a native-born citizen, a resident for fourteen years, they certainly had the right to say that no man shall hold office who has committed murder, burglary, or larceny ; and if they can so declare, they may certainly disfranchise one who has been guilty of treason. It is said the law is ex post facto in its character; what if it is? Have not the people the right, by a constitutional amendment, to enact such a law? It was even feared that Congress would be able to do so, and it was admitted that the States might do so if the people had not inhibited it in the Federal Constitution. I am aware that bills of attainder and ex post facto laws are unjust within themselves, and ought not to be passed where the power to do so is clear. But I deny that this is a bill of attainder or an ex post facto law. Such laws are criminal and not civil in their character. In the one case they select a particular delinquent, and punish him by the sole act of the Legislature without the forms of' law; in the other, they call that a crime which was innocent at the time of the act, and assume to punish it, or prescribe a greater degree of punishment for that which was already punishable. Before this provision can be called a bill of attainder or ex post facto law, it must be amenable to the charge that it proposes in some form to punish. It is sufficient for this argument to say that this is an act fixing the qualifications of officers and not an act for the punishment of crime. And again, punishment means to take away life, liberty, or property. These are absolute or inalienable rights. To take them away is an injury to the person. It is what we call punishment. They ought never to be taken away without due process of law. Office is the creature of Government. It is true it may be called a right. The right is not absolute but conventional. The Government created it and the Government can take it away. It has never been regarded in the American courts as a punishment when conventions and Legislatures deprived incumbents of their offices. Every State constitution contains provisions inhibiting the passage of bills of attainder, ex post facto laws, and laws impairing the obligations of contracts. The Federal Constitution provides the same limitation upon State power, which opens the Federal courts to any person aggrieved, and yet it is notorious that every State in The Union has turned officials out of office, changed their terms of service, reduced their salaries, and entirely abolished the laws under which they held. Nobody ever supposed that this was punishment, and unless that were punishment this cannot be. If this provision be all, even if faithfully carried out, it will be an act of the most stupendous mercy that ever mantled the crimes of rebellion. This rebellion was causeless. It was not only causeless but gigantic in its proportions, carrying hundreds of thousands to an untimely grave, and leaving a legacy of debt sufficient to crush

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the energies of any nation less vigorous and powerful than ours. It was not only a gigantic rebellion, but it was conducted by its leaders in a spirit of fiendish ferocity which renders them wholly unworthy of public confidence hereafter. It is said that these leaders ought not to be condemned unheard, that they should not even be disqualified for official position until their guilt is established in a court of justice. If it were proposed to take from them life, liberty, or property, I would be unwilling to do so except according to the law of the land. But when it is only proposed to fix a qualification for office and deny them future distinctions, which would rather make their treason honorable than odious. I do not hesitate to act. I know this will do but little good; I doubt whether it will do any. If they shall bring forth fruits meet for repentance, I perhaps will be the first to remove the disability. I never have exercised a malicious spirit toward these people. I have pitied, but never hated. No act of confiscation has ever received my support. No such act ever will. I never but once voted to disfranchise those who participated in the rebellion, and then only because I believed the best interests of my State demanded it. The necessity for such exclusion there has perhaps already passed. They clamor for suffrage, and I for one am willing to grant it to them if they will now be generous enough to extend it to all who carried the musket to defend the Government while they carried the musket to destroy it. Mr. President, the only remaining section of the proposed amendment pledges the public faith to the honest discharge of those obligations which we have incurred in maintaining the national life. This is but an act of justice to the creditor and a proper precaution against the establishment of parties hereafter appealing to the sordid interests and lowest passions of men. It not only accepts honesty as a principle, but indorses it as the highest and best policy of the State as well as of individuals. It also declares the rebel debt void, and therein it merely adopts an old and familiar principle of the common law. No agreement founded on an immoral consideration, no contract made, the object of which is to resist the law or overthrow Government, can be enforced. It may be asked, then, why adopt this amendment? The answer is, the defendant may not avail himself of his defense. He may be willing to make a new promise, and the debt, though now void, may be sufficient to support this new promise. And again, payment may be made voluntarily, though the debt be void. But the chief argument in its favor is that it forever settles a question, and settles it as it deserves to be settled. It precludes the organization of a political party, which might appeal to the pride of the South and receive material aid from the corruption funds of foreign creditors. Under all the circumstances I think the country should accept the amendment, for it does much toward settling some of the vexed questions of the past. Mr. YATES. Mr. President, I had not expected to say anything upon this question. I preferred to proceed to a vote immediately. We have had much debate upon it. I know the anxiety which gentlemen feel to come to a vote on this question, and I shall say but a very few words. I have thought that in consequence of the position which I assumed in the beginning of 1866 THE CONGRESSIONAL GLOBE 3037 the session, and from the fact that my heart has not been entirely in favor of the measures which have been proposed, and still not opposed to them, I may say, it became me to explain my views. It seems to be fashionable in this day for gentlemen who presume to think their views should be known to avail themselves of the opportunity to explain their position. I propose to do so now; and that I may speak more directly to the purpose, that I may present the views which I wish to present, and which I promise to detain the Senate but a very few minutes in stating, I will send to the desk of the Clerk an amendment which I propose to be added as a last section to the sections already under consideration, not so much that I care whether a vote is taken on it or not, but simply as the basis of the very few remarks which I shall submit on the present occasion. The Secretary read as follows: Nothing in the foregoing sections shall abridge or in anywise affect the rights, franchises, or privileges of any inhabitant of the United States, or of any State or Territory of the United States, guarantied by the constitutional amendment abolishing slavery within the United States, in force on the 18th day of December, 1865. Mr. YATES. At the beginning of the session I took the ground that already by the Constitution of the United States, as amended, every man in the United States, without regard to color or caste of any kind, was a citizen, and I offered a resolution to that effect, based upon the fact that by the constitutional amendment we had abolished slavery within the United States and in all the Territories subject to the jurisdiction of the United States, and required Congress, by appropriate legislation, to enforce that provision of the amendment. I offered my resolution declaring what seemed to be an admitted fact by Senators of distinguished ability, that all constitutions, laws, and regulations of any State or Territory of the United States which conflicted with this amendment to the

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Constitution of the United States were null and void. I took the ground that this being the fact, Congress should resort to the mode prescribed and required by the amendment, to “appropriate legislation,” to enforce that provision of the Constitution. I assumed the position that that amendment did not confer freedom upon the slave, or upon anybody, without conferring upon him the muniments of freedom, the rights, franchises, privileges that appertain to an American citizen or to freedom, in the proper acceptation of that term. I took the ground laid down in the decision of the Supreme Court of the United States in the Dred Scott case, (which certainly was a hard rule by which I should be governed,) that when this amendment passed the freedman was no longer a member of a subject race. He became by virtue of the amendment one of the people, one of the body-politic, and entitled to be protected in all his rights and privileges as one of the citizens of the United States. The deductions drawn from the decision in the Used Scott case were irresistible. The great Senator from Massachusetts [Mr. Sumner] said — the highest compliment ever paid to me in my life — that in view of the principles laid clown in that decision I had assumed an unanswerable position. I took the ground that the former slaves in every State of the United States, being made free by this amendment, occupied precisely the same position with any other part of the body-politic, that a son of a colored man born in the State of Wisconsin under the broad aegis of this amendment to the Constitution, had the same rights that my son had. I maintained that by this amendment to the Constitution, and by the promises of Abraham Lincoln made in his proclamation of emancipation, the former slave should be maintained in his freedom; that being like any other man, and not unlike him in any respect, under this amendment to the Constitution, he had the same right, the same inherent, if you choose, God-given right; and further, if he had not that right naturally or civilly or politically, he, by his heroic valor, his prowess upon many a glorious battlefield, where he had fought side by side with our own brave sons and brothers, had become entitled to it. I took the ground which I maintain today that suffrage is the only remedy for the evils by which we are surrounded. It is the only thing that can kill secession, the only thing that can divide the South or introduce a loyal element there which will be a counterbalancing force, the only thing which will secure us a loyal representation from the South and a loyal people in the South. I further held that if we went before the American people without indirection or disguise upon this broad proposition, we should sweep a large majority of the northern States, we should carry some of the southern States, and we should establish this country upon the solid foundations of permanent peace and happiness. Mr. President, I have therefore sent to the Chair the amendment which, with the consent of the honorable chairman of the committee, I am allowed to propose; an amendment which says that nothing in the sections which we are about to adopt shall be construed to mean that the rights, franchises, and privileges already secured by the Constitution of the United States to any American citizen shall be impaired or in anywise affected. Such an amendment can do no harm. If the power for which I contend does not exist in the Constitution now, these words can at the worst be regarded but as surplusage; while the thousands and the hundreds of thousands of the American people who this day believe that the power does exist there, the hundreds of thousands who believed it to exist there even before this amendment, like my friend from Massachusetts, will the more readily support the amendments which the committee have reported when they see and when they feel assured that there is nothing in the amendments which will deprive the citizen of rights already guarantied by the Constitution of the United States. Believing as I do as a lawyer, believing in my heart that under the constitutional amendment abolishing slavery within the United States, every inhabitant of the United States (excepting unnaturalized foreigners whose case is regulated by the Constitution) is as free as I am, and entitled to the same rights and privileges that I am. I have sent to the Chair this amendment which I desire to propose, so that there shall not be even a color from any judicial decision proposing to deprive men of rights which are already guarantied by the recognized law. Mr. President, if the Senator from Pennsylvania who sits by my side [Mr. Cowan] were here, I would say to him that it is not radicalism that I fear. My fear is not that this Congress will be too radical; I am not afraid of this Congress being shipwrecked upon any proposition of radicalism; but I fear from timid and cowardly conservatism which will not risk a great people to take their destiny in their own hands and to settle this great question upon the principles of equality, justice, and liberality. That is my fear. So far as my position is concerned, it is unchanged; my convictions are the rather strengthened, and if I had it in my power today, I would write it in plain words upon the face of the Constitution, plain as the stars upon the sky, not in tortuous and hard-to-be-understood propositions, but I would write in the fundamental and unchangeable law of the land, that the Declaration of American Independence was a verity, that all men were created equal; and having the powers which this Congress now has, I would prove my belief by making that Declaration a reality. If this Congress of the United States could adjourn on the 4th day of July, 1866, having

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accomplished this great result it would be the greatest epoch in the annals of time. At the termination of such a war as this, with its mighty events, signalized by its grand armies and its greater issues, and by the blazonry of the great achievements of our sons upon so many glorious battlefields, after so much blood and so much treasure had been spent, I could hope that the Congress of the United States would come up to the grand results that are taught by the events of this war, and by the emergencies by which we are surrounded, and proclaim the true principle and the only principle upon which this Government can live. I am true to the theory of my Government, I believe, I religiously believe, that the strong common sense of all the people, of the populace, of America is the salvation of the Government of the United States. My distinguished friend from Wisconsin, [Mr. Doolittle] and he is really my friend, claimed that he was the saviour of our party because he had prevented the issue of negro suffrage from being made in the State of Wisconsin last fall. Sir, a man who could claim to be the instrument of conferring these great and inalienable rights upon his fellow-men might with some propriety claim to be the saviour of his party and of his country. Does the Senator remember the gallant regiment from the State of Wisconsin, one thousand strong, who went out and bore up our flag amid the storm and thunder of battle? And he call himself a saviour of the country because he has been the instrument in the hands of Providence of preventing them from exercising the right of suffrage! Sir, his comparison of himself with our blessed Saviour was true in only one respect that I know of, and that is that he will most certainly be crucified. If, on the other hand, he could have come forward and said, "I stood by you; you were true to your country in the hour of its calamity and its affliction; we called you to the help of the Government; you came and stood by us in the hour of our calamity;" if he had made a sacrifice of himself in such a glorious act of humanity and human liberty, (if sacrifice it could be called,) it might not be considered blasphemy to compare himself to Him whose mission upon earth it was to proclaim liberty to the captive, to break every yoke, and let the oppressed go free. Not so much of a victory was that in Wisconsin. The honorable Senator said with an air of triumph that negro suffrage had been beaten by nine thousand votes. Look at it. After two hundred years of foul oppression, of accumulated prejudice against a race, when politicians dare not assert their opinions, at the very first election in the State of Wisconsin negro suffrage lacked only nine thousand votes, according to his statement, of being carried; and I am prepared to believe that with his powerful influence it would have been carried triumphantly. Mr. President, we may legislate on this question of suffrage. We may attempt by indirection to find direction. We know what we want and what we have got. Suffrage is upon us. Colored men vote in Wisconsin today under the authority of legal decisions. Iowa has boldly proclaimed by a majority of her citizens that she is for suffrage. Connecticut gained upon her last vote. Even in the slave States, Tennessee and Texas are on the verge of suffrage; and before these resolutions shall have passed the Congress of the United States suffrage, in spite of all of our legislation, will be an accomplished fact. Four million people set free in this country will override all political platforms and opposing forces. Seven hundred and fifty thousand voters loyal and true to the Union must and shall be had in favor of the preservation of this Government and the principles of human liberty. It is to me the strangest thing in the world that while we deny to four million loyal men — men who have been loyal under all circumstances, who have been true to the country everywhere, in war and in peace — while we deny to them the rights of American citizens, we are prepared to extend all privileges to the men who have tried to destroy and to overthrow the Government. There is no propriety, there is no good taste in such yearnings over rebels and traitors, while we deny right and justice to our friends. We listened to the Senator from Pennsylvania [Mr. Cowan] a day or two ago, and he 3038 THE CONGRESSIONAL GLOBE June 8, seemed to think that to deprive a man of the right to hold an office was the highest punishment that could possibly be inflicted upon him; and he supposed a most affecting case, but a case which is utterly impossible, that my friend from Michigan had been a traitor and that he wanted to be a candidate for the United States Senate, and his wife and children would gather around him and say, "Why cannot my husband or my father be a Senator? He is as great as any of those men there; why cannot he be a Senator? Simply because he has not the right to hold an office. It is a punishment; it is the mark of Cain upon his brow; it is the wolf-head upon his brow. He has no right to be a Senator; otherwise my husband or my father would be in the Senate as well as other people." Sir, let us suppose another case. Here is a man, Winder, or Dick Turner, or some other notorious character. He has been the cause of the death of that boy of yours. He has shot at him from behind an ambuscade, or he has starved him to death in the Andersonville prison, or he has made him lie at Belle Isle subject to disease and death from the miasma by which he was surrounded. When he is upon trial and the question is, "Sir, are you guilty, or

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are you not guilty?" and he raises his blood-stained hands, deep dyed in innocent and patriotic blood, the Senator from Pennsylvania rises and says, "For God's sake do not deprive him of the right to go to the Legislature.'' The idea is that if a man has forfeited his life, it is too great a punishment, to deprive him of the privilege of holding office. But I stated that I should make but a very few remarks, and I now come to the point which is more interesting to all of us, and that is strange as it may seem, with these views in my mind, and while I subject myself to the criticism of my distinguished friend from Indiana, [Mr. Hendricks] I shall support, these propositions. They are not such as I approve. They do not come up to the stand-point which I have set for myself. I think that Congress has failed to come up to the stand-point of the people in this regard; but, at the same time, as I cannot get the position for which I have so earnestly contended, I will sit quietly by, as I have sat quietly by, and take the next best proposition that I can get. I believe in the good common sense of my friend from Maine [Mr. Fessenden] who says that if he cannot get the best dinner he will take the next best; if he cannot get the best proposition he will take the next best proposition. I have a good deal of faith like that of may friend from Ohio; and while I would not state the proposition quite so broadly as he does, yet I always feel perfectly safe when I am in the hands of a good Republican Union party; and I would rather trust to the wisdom of the Senator from Maine and the collective wisdom of the Senators by whom I am surrounded than to stand foolishly by myself and assort that I was the only man in the world who understood this question. I only act upon a principle that the Senator from Indiana and myself and all of us act upon here every day. We propose to amend propositions, and if those amendments fail we go for the proposition itself, notwithstanding our amendments are not adopted, notwithstanding the best thing is not in it; and that is my position today. There are other points in these constitutional amendments to which I will not refer, except to say that my judgment approves of them. I am for the exclusion of traitors and reliefs from exercising control and power and authority in this Government until they have shown fruits meet for repentance. I am for the repudiation of the rebel debt. I am against compensation for slaves, as I am against compensation for any other rebel property. But above all there is in the first section a clause that I particularly favor. It is this: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. And then it goes on to provide that their rights shall not be abridged by any State. We have here, in the Constitution of the United States of America, a guarantee which protects us from future judicial tyranny such as we have experienced under the decisions of the Supreme Court. We have a declaration as to who are citizens of the United States. If this amendment of mine could be adopted, that in the constitutional amendments which we submit we do not propose to conflict with any rights which have been heretofore guarantied by the fundamental law, the Constitution of the United States, I should be still more satisfied. But, sir, there is another feature in this proposition, and that is that although we do not obtain suffrage now, it is not far off, because the grasping desire of the South for office, that old desire to rule and reign over this Government and control its destinies, will at a very early day hasten the enfranchisement of the loyal blacks. While gentlemen upon the other side of the Chamber are opposed to these measures as too radical, I am opposed to them, so far as I might present points of opposition, because they are not radical enough. At all events, therefore, we have the medium between extremes; we have moderation. If we do not meet the views of the Radicals on the one hand, nor the views of the pro-slavery Democracy upon the other, we at all events have the medium, the moderation which has been agreed upon by the collective wisdom of the American Senate. I am glad that I can go before may constituents and say that the whole History of the world there never were such terms of moderation and of magnanimity proposed to a vindictive foe as by these resolutions which have been reported by the committee of fifteen. Mr. FESSENDEN. I ask leave to make a report. I have here an extended report from file committee of fifteen, so called, the committee of reconstruction, giving their views and reasons with reference to the joint resolution which they submitted to the Senate and the conclusions to which they arrived. It was my hope that some time in the course of this debate, before the vote was taken, I might have the opportunity to lay the whole report before the Senate and have it read, but it is now so hate an hour, and as gentlemen are desirous of taking the vote, and it has been agreed to take it today, that I do not feel that it would be right to attempt to have it read in detail. I therefore move that it be laid upon the table and printed. The motion was agreed to. Mr. JOHNSON. It was understood in committee that if there should be any member who did not agree with the majority of the committee he would be at liberty to make a counter or minority report, and I merely rise for the

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purpose of saying that as such is the condition in which I stand, and in which two or three other members of the committee stand, I shall avail myself of that privilege at as early a day as possible. Mr. McDOUGALL. Mr. President, there is no one who more admires the rhetoric or the elocution of the Senator from Illinois than I, for I have known him from ancient days; but the people of Illinois a long time ago said by a formal act of legislative power that no person of African blood should go into the State of Illinois; and that is now, I believe, still on your statute-book. Mr. YATES. It is in the constitution. Mr. McDOUGALL. I remember very well, for I inhabited in and about that part of the world a long time ago, then it was thought improvident in the State of Illinois to allow colored people to come within their lines, and it was incorporated into their fundamental law; and that has not been, if I am correct, changed up to this time. I ask the Senator from Illinois if it has been. Mr. TRUMBULL. The constitution has not been altered; the law has been. Mr. McDOUGALL. I only mention this as the text for my own opinion, for I was conversant with that State at that time, and the people then held that a negro or a man of African descent was not a valuable property in the State of Illinois. That is the opinion there now, and when it comes to be questioned by my friends from Illinois, they will find that there is the same opinion in Illinois yet. They think yet that Government belongs to the white race. That is the simple, clear proposition. It is refuted. The converse is affirmed in Massachusetts and some other places, and I saw there was a meeting in Boston a short time since where they said that if the right of suffrage was not granted to the African there would he a bloodier war than the last war through which we have gone. I will give you a response to that, coming from a different part of the country. It is from a secessionist. I will state it exactly. He came back home and had reintegrated himself. A friend of mine met him at Louisville, Kentucky, and said to him, "How are you, Benham? How about this being down on Beauregard's staff?" He replied, "I was there." "How about it now?" He answered, "I tell you that I am the best Union man in the United States, and if you will give me a chance I will prove it, and I will prove it in this wise: let Massachusetts and company undertake to secede, and then I will prove my Unionism.” Mr. HOWARD. I do not wish to call the Senator from California to order; but he must be aware that his observations are not very pertinent to the question now before the Senate, and I am very anxious to bring this measure to a final vote before we adjourn. Mr. McDOUGALL. I will not occupy the floor longer. I mean to say this by way of affirmation of my opinions upon one of the gravest questions that has arisen in these times. I believe firmly, and I believe sternly, that this is a Government where there should be no mongrel races. I would not permit it if I had the power to resist it, and I will give my voice against it, and I give it now. The PRESIDING OFFICER. (Mr. Pomeroy in the chair.) The question before the Senate is on the amendment of the Senator from Oregon [Mr. Williams] as a substitute for the second section of the resolution. The amendment has been modified by the mover, and it will be read as modified. The Secretary read the amendment as modified, which was to strike out the second section of the resolution and to insert the following in lieu thereof: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Mr. HOWARD. I have one word to say upon that amendment. I desire to state, as briefly and clearly as I am able, some of the consequences to which it will lead if adopted. It declares that when the right to vote at any election for those five several classes of public officers shall be denied to any person of twenty-one years of age and a citizen of the United States, that person shall not be included in the count in forming the basis of representation. How is this to be carried out, supposing it to be adopted? What will be its practical workings when made a part of the Constitution by a formal ratification? The census-taker will find it necessary, whenever he makes the count of the inhabitants of the particular State or district where he is acting, to ascertain, as precisely as he is able, and to note down in his tables the various persons within the State who are capacitated to vote for any one or all of these five classes of public officers. For instance, he will be required to note down in his returns what

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classes of voters are allowed 1866 THE CONGRESSIONAL GLOBE 3039 to vote for Governor of the State; how many are authorized to vote for Lieutenant Governor; who are authorized to vote for members of the State Legislature; who for electors of President and Vice President of the United States; who for the judicial officers of the State; and so on to the end of the category. Without this exact information to be furnished from the State, it will be readily perceived that it will be impossible to fix and settle the ratio of representation which the State shall be entitled to. No one class of the voters for these several classes of public officers is to be held as the standard and test for the number of persons in that State to be included in the count in the formation of the basis of representation. It appears to me that it introduces a rule which is so uncertain, so difficult of practical application, as not only greatly to increase the expenses of ascertaining the basis of representation by Congress in procuring the necessary information, but in many cases the returns must be so inaccurate and unreliable as to be next to worthless. As I said before, I do not wish to consume the time of the Senate, but it is at once to be perceived that if this rule shall be adopted, its operations will be felt in every election of a justice of the peace, in every municipal corporation of the United States, where, by the municipal law of the place, a justice of the peace is to be elected; for a justice of the peace is a judicial officer in precisely the same sense that the Chief Justice of the United States is such. We know very well that the States retain the power, which they have always possessed, of regulating the right of suffrage in the States. It is the theory of the Constitution itself. That fight has never been taken from them; no endeavor has ever been made to take it from them; and the theory of this whole amendment is, to leave the power of regulating the suffrage with the people or Legislatures of the States, and not to assume to regulate it by any clause of the Constitution of the United States. One class of qualifications may by a State be made necessary in the election of a Governor; another set in the election of the members of the Senate in that State; another in the election of members of the most numerous branch of the Legislature; another set of qualifications may be required by the State in the election of its several judicial officers; another in the election of electors of President and Vice President of the United States; and so on to the end of the chapter. It is a system which must necessarily vary as the laws and constitutions of the States vary; and a system which, therefore, must necessarily lead to great difficulty in its practical operations and results, and in many cases be almost entirely worthless for want of the necessary exact information which Congress should acquire and use in fixing the basis. A class of voters may be excluded from voting for a justice of the supreme court in their State who may, within their municipal limits, be allowed to vote for justices of the peace. This amendment would exclude from the count all those voters, citizens of the State, who were not permitted to vote for a justice of the supreme court; and there is no telling how far this may extend, or where these disabilities may lead, and what the ultimate results may be. I far prefer some simple standard; and if it be in order I beg to submit to the Senate, as the result of the best consideration I have been able to bestow, a simple amendment to the amendment offered by the Senator from Oregon. My amendment will refer to his printed amendment offered yesterday. If it shall be adopted the whole section will read thus; and I desire the attention of the Senate for a moment to the text of the amendment if it shall be adopted, as I propose to amend it: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever the right to vote at any election held under the constitution and laws of any State for members of the most numerous branch of its Legislature is denied to any male inhabitant of such State, being twenty-one years of age and a citizen of the United States, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. This will leave the simple test to be the qualifications of a voter for members of the most numerous branch of the Legislature of the State; and it has no connection with any other State officer. Now, sir, let me say one word more. By the Constitution of the United States those persons in a State who are privileged to vote for members of the most numerous branch of its Legislature are the persons authorized to elect members of the Congress of the United States. The rule is invariable throughout the States. Why not introduce into this amendment this ancient, simple, invariable, and easily working test, instead of the variable and shifting qualifications embraced in the amendment of the honorable Senator from Oregon? I propose also to strike out the words "or in any way abridged" in the eighth line of the printed amendment. I do not know, and I have not yet been able to find any gentleman who did know, what an abridgment of the right

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to vote really is. It strikes me it is a misapplication of terms. The right to vote is a unit. It is indivisible, as indivisible as a mathematical point, and as incapable of abridgment. If a man possesses the right to vote, he possesses it in its entirety. If he does not possess it, he does not possess it either conditionally, qualifiedly, or at all. He must possess it,wholly or not at all. I am not able to see how this right can be abridged. It seems to me this language is introducing confusion and uncertainty into our constitutional amendment. It is an invitation to raise questions of construction, and it will be followed, in my humble judgment, and as I fear, with an unending train of disputations in courts of justice and elsewhere, and there is no possibility of foreseeing what in the end will be the decision of the Supreme Court as to the meaning of the language "or in any way abridged." To me it is incomprehensible. 1 felt it a duty due to myself thus to express my objections to the amendment of the Senator from Oregon. The PRESIDING OFFICER. The Senator from Michigan proposes two amendments to the amendment submitted by the Senator from Oregon. The first amendment will be read. The Secretary read the amendment, which was to strike out in the fourth line of the amendment, after the word "taxed" the words–— But when the right to vote at any election for the choice of electors f'or President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof–— And, to insert in lieu thereof: But whenever the right to vote at any election held under the constitution and laws of any Slate for members of the most numerous branch of its Legislature. So that the amendment, if amended, will read: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever the right to vote at any election held under the constitution and laws of any State for members of the most numerous branch of its Legislature is denied to any of the male inhabitants of such State, &c. Mr. HENDRICKS. It is not my purpose to delay the vote but a moment. I have desired to accommodate the Senator who wishes to leave, and shall not be in the way of that result, but it is my duty to call the attention of the Senator from Michigan to the language of the first section. He says that the word "abridged" as found in the second section in its connection with the right of suffrage, is of such uncertain meaning that it ought not to be used in the Constitution; that it would carry cases into the courts; and therefore the word ought not to be used. Now, I find the same word used in the first section of this article, and in a very important connection, if possible in a more important connection than that in which it is found in the second section: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. If the chairman — I was going to say the chairman of the caucus, but I will not say that — if the distinguished Senator who has this measure now in charge says to the Senate that the word "abridged," in its connection with the right of suffrage, is of such uncertain meaning that it should not be used in the Constitution in that connection, is it proper that that word shall be used in the first section in relation to the rights and privileges and immunities of citizens? Mr. HOWARD. I think so, undoubtedly; because it is easy to apply the term "abridged " to the privileges and immunities of citizens, which necessarily include within themselves a great number of particulars. They are not a unit, an indivisible unit, like the right to vote. Mr. COWAN. I should like to make the inquiry again, how the abridgment or the extent of the abridgment is to be determined in the several States where it is abridged for non-payment of taxes, or abridged for non-residence and all that kind of thing. Mr. HENDRICKS. The language of the first section would be identical with the second if it were "denied or abridged." Now the Senator says he cannot understand what it means when we speak of "abridging" the right of suffrage. Then I ask what it means when we speak of "abridging" the rights and immunities of citizenship. It is a little difficult to say, and I have not heard any Senator accurately define, what are the rights and immunities of citizenship; and I do not know that any statesman has very accurately defined them; but even in reference to that, which of itself is not very certain but to some extent vague, a word is now used, as the Senator says, of uncertain legal meaning. He is willing that we shall say " abridge" the rights and immunities of citizens, but not willing that we shall use the word "abridge" the right of suffrage. Of course, the abridgment of the right of suffrage does not apply to the particular individual when he comes to cast his vote, that he shall cast a part of a vote. It does not

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mean that. It must relate to the class that shall enjoy it. An abridgment of the right of suffrage must relate to the class to which it applies or extends. Mr. President, my purpose in calling attention to this is to say that this proceeding by the amendment of the Constitution is not so safe as it ought to be. What have we witnessed within the last two days? The measure first came from the committee of fifteen, where it was considered for long sessions of the committee, and brought before us as it was claimed, in a very perfect state. A little discussion showed that it would not stand the test. Senators were opposed to this and that of the different propositions. Then it went to a peculiar assembly, and was considered there. It comes back, and even the Senator who brings in the report is now dissatisfied. The Senator from Ohio [Mr. SHERMAN] yesterday admitted that he was dissatisfied; that it was not what he desired. The Senator from Illinois, [Mr. YATES,] so very able and eloquent today, says it is not what it ought to be; and I desire to say, in explanation, that the criticism that I made yesterday on the position of the Senator from Ohio does not apply to the Senator from Illinois. The Senator from Illinois did not understand the logical force of the point which I made. I did not say that when a proposition is before a body, if an amendment is offered to that proposition, and you lose your amendment, therefore you must necessarily vote against the original proposition because you cannot get the best that you think might be done. My point upon the Senator from Ohio was this, that the original proposition being here, and an amendment offered by the Senator from Wisconsin, the Senator from 3040 THE CONGRESSIONAL GLOBE June 8, Ohio said in his place that the amendment was the better of the two propositions, but he was going to vote against an amendment which was better than the original proposition. That is the very reverse of the position occupied by the Senator from Illinois. I acknowledge that the position of the Senator from Illinois is a very correct one. I do not choose to vote against a measure simply because an amendment which I think would improve it is defeated, if the original measure commands my judgment. Now, sir, this measure, which I believe can accomplish no good for the country, is condemned in part by the Senator from Ohio, in part by the Senator from Illinois, in part by the Senator who now proposes an amendment; but all three of these Senators say they will vote for it, not that it is right, but that it is the best they can get under the circumstances. I do not expect the judgment of each man to be perfectly satisfied with every proposition; but, sir, the Constitution ought not to be amended for the purpose of making a platform for a political campaign. The Constitution of the country ought to be amended that it shall be the permanent fundamental law of the country. The embarrassment here is, not that it is difficult to define such general propositions as ought to find their way into the Constitution, but the difficulty in the phraseology here is to include this, and to exclude that, to leave general propositions, to leave a principle, and to fix up a thing for a particular purpose. When the Senator from Michigan says that the southern negroes ought not to be counted if they are regarded as unfit to be voters, I understand that proposition; but when he turns around and says that the people of Missouri, who are decreed by the rest of the people of that State as unfit to be voters, shall be represented, I do not understand such a proposition; and where you undertake to express opposite thoughts in the same sentence you find difficulty of phraseology. If you will say in plain words that nobody shall be represented in Congress who is not, recognized by the State as a voter, I understand it; but when you say that a man in the State of Georgia shall not be represented because the people of Georgia count him unfit to be a voter, and in the State of Missouri, a man, who is counted as unfit to be a voter, shall be represented there, I do not understand the principle. When you have to fix up a Constitution to include some things and exclude others, for partisan purposes, you do find difficulties of phraseology. It cannot be made easy. The difficulty is in the thought, not in the use of the English language; and that is the very difficulty that we hate in this case. How do you want to "abridge" the right of suffrage? What is meant by it? What is meant by "abridging" the rights and immunities of citizens? We do not know, the Senator from Michigan says. Why shall we allow representation to a non-voter in one State, and disallow it in another, upon principle? You say that the negro in Georgia, because he is not allowed to be a voter by the people of Georgia, shall not be represented, and you say that the criminals, because they are criminals, in Missouri, excluded from the right of voting, shall be represented. Where is the principle and the right of it? Sir, this thing will be discussed before the people. Although it is clothed in doubtful sentences, it will come to be understood. I believe the people of this country are just; and I do not think the people of this country will say that the voter in Missouri ought to represent two men, when the voter in another State is denied that. But, sir, my purpose was simply to suggest to the distinguished Senator from Michigan that the same doubtful word was used in the first section that he objects to in the second. The PRESIDING OFFICER. The question is on the amendment of the Senator from Michigan to the

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amendment of the Senator from Oregon, Mr. EDMUNDS. I ask that the question may be divided, so that the vote on striking out the words "or in any way abridged" may be taken separately. The PRESIDING OFFICER. That is a separate amendment. The question now is on the first amendment offered by the Senator from Michigan to the amendment of the Senator from Oregon. The amendment to the amendment was rejected. The PRESIDING OFFICER. The question now is on the second amendment offered by the Senator from Michigan to the amendment made by the Senator from Oregon, which is in line eight of the amendment to strike out the words "or in any way abridge." The amendment to the amendment was ejected. The PRESIDING OFFICER. The question now is on the amendment of the Senator from Oregon. The amendment was agreed to. Mr. CLARK. I now move the amendment which I have heretofore offered striking out the fourth and fifth sections of the resolution and inserting a substitute; and I desire to modify the substitute by striking out the word "forever," in the last line, which does not add anything to its force. The Secretary read the proposed substitute for the fourth and fifth sections, as follows: Sec. —. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void. Mr. JOHNSON. I do not understand that this changes at all the effect of the fourth and fifth sections. The result is the same. Mr. CLARK. The result is the same. The amendment was agreed to. Mr. FESSENDEN. I desire to insert in the first section, by general consent, after the word "born," the words "or naturalized;" so that the clause will read: All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. Mr. HOWARD. There is no objection to that. The amendment was agreed to. Mr. DOOLITTLE. I now offer the amendment which I gave notice of, the effect of which is to submit these separate sections as so many separate articles, any of which may be accepted or rejected by the States. I move to strike out all after the enacting clause of the resolution and to insert the following: That the following articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States, which, or either of which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely: ARTICLE—. All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. ARTICLE—. Representatives shall be apportioned among the several States which may be included within the Union according to their respective number, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty one years of ago in such State. ARTICLE—. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability.

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ARTICLE—. The obligations of the United States incurred in suppressing insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate. ARTICLE—. Neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim on account of the loss or emancipation of any slave; but all such debts, obligations, and claims, shall be forever held illegal and void. ARTICLE—. The Congress shall have power to enforce, by appropriate legislation, the provisions of these articles. I shall not make any speech on this subject. I simply state the fact that this is in accordance with the precedents. The first amendments to the Constitution submitted to the States were twelve in number, and they were submitted as separate articles. Ten of them were adopted; two of them were rejected by the States. All the other amendments that have ever been submitted have been submitted as separate articles. Mr. JOHNSON. And the language was the same, "or either of them." Mr. DOOLITTLE. I have not the acts before me, but that is so. The reason is obvious. In all legislation a single member has the right to demand a vote on every single proposition; and as these distinct propositions are to be submitted to the Legislatures of the several States, they ought to be submitted in such a way that they may ratify or reject either of the propositions. Now, they are entirely distinct from each other; the first defining citizenship; the second on the subject of representation; the third in relation to disfranchisement; and, as amended, the fourth and fifth sections are combined in one, having reference to the public debt and the rebel debt. They are all distinct, independent propositions. They ought not to be submitted in such a way that they must all be accepted or all rejected by the States, but the States should be permitted to act upon each of them separately. I will not take up the time of the Senate in discussion, because I know the desire is to vote. Mr. TRUMBULL. The amendment submitted a year ago was in two sections; so that this is not without precedent. Mr. DOOLITTLE. The last section was simply to enforce the first. Mr. JOHNSON. They were not disconnected at all. Mr. TRUMBULL. I merely mention this to correct the statement of the Senator. Mr. DOOLITTLE. It was substantially the same, and gave no other power but to enforce the first; that is all. The PRESIDING OFFICER. The question is on the amendment of the Senator from Wisconsin. Mr. JOHNSON. On that question I ask for the yeas and nays. The yeas and nays were ordered; and being taken, resulted — yeas 11, nays 33 ; as follows: YEAS—Messrs. Cowan, Davis, Doolittle, Gnthrie, Hendricks, Johnson, McDougall, Norton, Riddle, Saulsbury, and Van Winkle―11. NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Summer, Trumbull, Wade, Willey, Williams, Wilson, and Yates—33. ABSENT—Messrs. Brown, Buckalew, Dixon, Nesmith, and Wright―5. So the amendment was rejected. Mr. DAVIS. I desire to move an amendment to the third section. The PRESIDING OFFICER. The Chair understands that the third section being an amendment agreed to in committee, it is not in order to amend it now, but it will be in order when the joint resolution shall be reported to the Senate. The joint resolution was reported to the Senate as amended. The PRESIDING OFFICER. The resolution is now open to further amendment. 1866 THE CONGRESSIONAL GLOBE 3041 Mr. DAVIS. I now move to amend the third section, in line thirty-three, by striking out the words "or under any State," and in lines thirty-five and thirty-six by striking out the words "or as a member of any State Legislature or as an executive or judicial officer of any State so that it will read: Sec. 3. That no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, who having previously taken an oath, as a member of Congress or as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort

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to the enemies thereof. But Congress may by a vote of two thirds of each House remove such disability. I have barely a word to say in explanation of this amendment. This section operates upon all officers, both of the United States and of the States, who took an oath to support the Constitution of the United States, and it excludes them from office in the future, as well in the States as in the United States. The object of my amendment is simply to limit the effect of the violation of the Constitution to cases where the officer who took the oath was a United States officer, to exclude the ineligibility from State officers, and to restrict it entirely to Federal officers. The amendment was rejected. Mr. DAVIS. I have another amendment to offer. It is to insert at the end of section four: But the obligation of the United States to pay for private property taken for public use in all cases shall remain inviolate. I will explain this amendment in a word. Section four reads as follows: The obligations of the United States incurred in suppressing insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate. Mr. HENDERSON. That has been stricken out. Mr. CLARK. But it has been inserted again in another form. Mr. DAVIS. The effect of my amendment is simply to insert a provision that the obligation of the United States for the payment of private property taken for public use shall also remain inviolate. The amendment was rejected. Mr. DAVIS. I have one more amendment and then I have done. I send it to the desk. The PRESIDING OFFICER. The Chair understands that the amendment that the Senator proposes is to a part that has been stricken out, and does not apply and cannot be made to apply to the text as it now stands, and therefore is not in order. Mr. DAVIS. I will inquire if there is not inserted in lieu of that which is stricken out something to the same effect. The PRESIDING OFFICER. Something to the same effect has been inserted, and the amendment can be made to apply to that. The Secretary read the amendment, which was in section four, line three, after the word "bounties," to insert the following words: Including bounties promised to the owners of slaves enlisted into thq military service of the United States by the act of Congress of February 29, 1864. Mr. CLARK. That amendment is in order. Mr. DAVIS. I have but a word to say on the amendment. The Congress of the United States passed an act which I have before me, but which I will not read, in which they pledged the payment of certain bounties to the loyal owners of slaves that might be enlisted into the armies of the United States either from volunteering or by being drafted. I merely propose a guarantee in this clause for the payment of those bounties. The amendment was rejected. The PRESIDING OFFICER. The question is on concurring in the amendments made as in Committee of the Whole. The question will be taken on all the amendments collectively unless some Senator desires a separate vote. ["Altogether."] Mr. HOWARD. I wish to reserve the amendment to the second section for a separate vote. The PRESIDING OFFICER. That amendment will be reserved. Mr. JOHNSON. There are two or three of these sections that I should be willing to vote for, but I cannot vote for the whole. I think, therefore, we had better take the vote separately. Mr. SHERMAN. I think we had better take the vote on the sections separately. The PRESIDING OFFICER. Does the Senator ask for a separate vote on all the amendments? Mr. SHERMAN. I ask that each section be read, and that the vote be taken on them separately. Mr. GRIMES. That cannot be done, as I understand. They are all embodied in one resolution. The idea suggested by the Senator from Ohio is substantially the proposition of the Senator from Wisconsin, which was voted down. I know that his proposition was to submit these sections as articles to the States separately; but all these propositions are before us in one joint resolution. Mr. SHERMAN. Each section has been amended, and as a matter of course we can act on them separately. Mr. GRIMES. You can act on the amendments separately. The PRESIDING OFFICER. The question is on concurring in the amendments made as in Committee of the Whole, and the question must be taken on each amendment separately if called for by any Senator. The first

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amendment will be read. The Secretary read the first amendment, which was to insert at the beginning of the first section the following words: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Mr. McDOUGALL. I move that the resolution under consideration be postponed until Tuesday next at one o'clock. Mr. FESSENDEN. It was agreed yesterday that we should take the vote today. Mr. HOWARD. I hope it will not be postponed. It was understood that we should come to a final vote today. Mr. McDOUGALL. In making the motion, I wish to give the reason why I make it. This business of amending the Constitution should be carefully done; and about many of these provisions I am myself still in great doubt, though I have looked at them as carefully as I could. I do not think we should hasten constitutional amendments. It takes a great deal of hard work to get out foundation stones, and now we are undertaking to lay foundation stones. I say the measure had better be manipulated a little more than it has been, so that we may know that we do exactly right whether we affirm or disaffirm the proposition. Several Senators. Let us vote. Mr. McDOUGALL. I am not disposed to vote upon it at all. Of course I can be subjected to the power of a majority as organized in caucus; but I must say it is the first time in the history of this Republic that legislative matters and great constitutional questions were settled in party caucus. That has transpired for the first time in our history during the recent war and during the past and present Administrations. It deprives men of the right of counsel. Those who have the violence and strength of the majority can exert it; but I have a right to be heard upon all these questions. There is no party organization that has the right, under our system of government, to so organize themselves that they shall supersede the system under which our Government was established, and when they do it it is an act of tyrannous power. It is glorious to have a giant's power, but tyrannous to use it like a giant. The motion to postpone was not agreed to. The PRESIDING OFFICER. The question is on concurring in the amendments made as in Committee of the Whole to the first section of the proposed article. The amendments were concurred in. Mr. JOHNSON. I am decidedly in favor of the first part of the section which defines what citizenship shall be, and in favor of that part of the section which denies to a State the right to deprive any person of life, liberty, or property without due process of law, but I think it is quite objectionable to provide that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," simply because I do not understand what will be the effect of that. Mr. FESSENDEN. We have agreed to that. Mr. JOHNSON. I understand not. Mr. CLARK. We have concurred in the amendments made as in Committee of the Whole to the first section. Mr. JOHNSON. That is all. You have not agreed to the words to which I now object. I move, therefore, to amend the section as it now stands by striking out the words "make or enforce any law which shall abridge the privileges or immunities of citizens of the Unit ted States; nor shall any State;" so as to make it read: No State shall deprive any person of life, liberty, or property without duo process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Mr. CONNESS. Have all the amendments made as in Committee of the Whole been voted upon? The PRESIDING OFFICER. They have not been. Mr. CONNESS. Are they not first in order? Mr. CLARK. Oh, we may as well vote on this amendment now as it is moved; it saves time. The amendment was rejected. The PRESIDING OFFICER. The next amendment made as in Committee of the Whole was to strike out the second section and insert a substitute for it, which will be read. Mr. HENDRICKS. The will of the Senate in regard to these amendments has been so emphatically expressed that I think we may as well take the vote on all of them without reading them. We all know what they are. Mr. FESSENDEN. The Senator from Michigan called for a separate vote. Mr. HOWARD. Only upon this amendment. Mr. HENDRICKS. Then upon the others let us have one vote and be done with them. Mr. TRUMBULL. The question now is on striking out the second section and inserting another. Let us have

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the yeas and nays on that. The yeas and nays were ordered. Mr. GRIMES. Is the question on concurring in the amendment or striking it out? The PRESIDING OFFICER. On concurring in the amendment. Mr. TRUMBULL. The question is on striking out the second section and inserting that amendment instead of it. Mr. FESSENDEN. We made the amendment in committee. Now the question is on concurring in it. Mr. TRUMBULL. Very well, but concurring in that strikes out the second section and puts in another section in place of it. Those who are in favor of striking out the second section as it was printed and inserting what was offered by the Senator from Oregon [Mr. Williams] will say "ay," and those who are in favor of adhering to the section as it is printed will say "no." The question being taken by yeas and nays, resulted—yeas 31, nays 11; as follows: YEAS—Messrs. Anthony Clark, Conness, Cowan, Cragin, Creswell, Doolittle, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howe, Johnson, Lane of Kansas, McDougall, Morgan, Merrill, Norton, Nye, Poland, Pomeroy, Ramsey Sherman, Stewart, Sumner, Van Winkle, Willey, Williams, and Wilson―31. NAYS—Messrs. Chandler, Guthrie, Hendricks, Howard, Kirkwood, Lane of Indiana, Saulsbury, Sprague Trumbull, Wade, and Yates―11 ABSENT—Messrs. Brown, Buckalew, Davis, Dixon, Nesmith, Riddle, and Wright—7. So the amendment to the second section was concurred in. 3042 THE CONGRESSIONAL GLOBE June 8, Several SENATORS. Now let us vote on all the other amendments together. The PRESIDING OFFICER. If such be the pleasure of the Senate, the question will be taken collectively on all the other amendments. Mr. JOHNSON. I hope not. I want a separate vote on the third section. fhe PRESIDING OFFICER. That is the next section. Mr. HENDRICKS. I do not understand this. Can this resolution be adopted by voting on sections separately? Mr. FESSENDEN. No. The PRESIDING OFFICER. The Senate is now concurring in amendments made as in Committee of the Whole. Mr. SHERMAN. No amendment was made to the third section. Mr. HENDRICKS. That is what I want to understand. I understand that there is no amendment from the Committee of the Whole to the third section. Mr. FESSENDEN. Yes, we struck out the third section as reported and inserted a substitute for it. The PRESIDING OFFICER. The question is on the amendment made as in Committee of the Whole to the third section. Mr. JOHNSON. I ask for the yeas and nays on that. The yeas and nays were ordered. Mr. SHERMAN. The third section was the original section that came from the House disfranchising the southern people from voting. That has been stricken out. Mr. HOWARD. The question is on concurring in the amendment we made to the third section. Mr. SHERMAN. That was to strike out the third section which came from the House and insert another. The question was taken by yeas and nays, with the following result: YEAS—Messrs. Anthony, Chandler, Clark, Conness, Cowan, Cragin, Creswell. Davis, Doolittle, Edwunds, Fessenden, Foster, Grimes, Guthrie, Harris, Henderson, Hendricks, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, McDougall, Morgan, Morrill, Norton, Nye, Poland, Pomeroy, Ramsey. Saulsbury, Sherman, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, Wilson, and Yates—42. NAY—Mr. Johnson— . ABSENT—Messrs. Brown, Buckalew, Dixon, Nesmith, Riddle, and Wright—6. Mr. HENDRICKS, (before the result was announced.) I think the vote just taken is not correctly understood. The PRESIDING OFFICER. No discussion is in order; the vote has not been announced. Mr. HENDRICKS. I am not going into any discussion, but I have a right to ask of the Chair the precise question in time to let any gentleman change his vote if he desires to do so. The motion was not originally to strike out the third section as it came from the House and to insert another. They were separate motions. Then

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ought there not to be two votes upon this section now? Mr. SHERMAN. I suppose any Senator can call for a division. Mr. HENDRICKS. There is no need to call for a division because there were two distinct motions. There was first a motion to strike out and afterward a motion to insert something else. Now, the precise question before the Senate is whether the third section as it came from the House shall be stricken out, and then there will be another question not yet voted upon by the Senate, whether we shall insert the third section which was agreed to as in Committee of the Whole. That is the way it stands. Several SENATORS. Oh, no. Mr. JOHNSON. Mr. President— Mr. CONNESS. I object to discussion at this time. The PRESIDING OFFICER. The discussion is not in order; the vote has not been announced. Mr. JOHNSON. I am not about to discuss the question. The Senator from California need not suppose that I propose to occupy the time of the Senate unnecessarily. I proposed to strike out the original third section as it came from the House. Mr. CONNESS. I rise to a question of order. It is not in order to discuss a question after the call of the roll has been commenced. The PRESIDING OFFICER. The result of the vote has not been announced, but the roll has been called. Mr. JOHNSON. If I am not in order I will take my seat; but it is barely possible that the Senator from California may not be in order. Mr. CONNESS. I am quite aware of that; but I believe I have a right to raise the question of order. Mr. JOHNSON. I do not object to that. Mr. CONNESS. Very well; then let the Chair decide. The PRESIDING OFFICER. No discussion is in order until after the vote is announced; but, by common consent, Senators may be allowed to explain their own votes, but no extended remarks can be allowed. Mr. CONNESS. There is no right to explain a vote. Mr. JOHNSON. I moved to strike out the third section as it came from the other House. That motion was carried, and afterward what now appears upon the face of the resolution as the third section was proposed and adopted as a separate amendment. I voted just this moment to strike out what was adopted. The effect of that would have been to restore the original third section, perhaps, but I meant when that was done to move to strike out the third section so as to leave no such section. The PRESIDING OFFICER. On this question— Mr. HENDRICKS. What question? The PRESIDING OFFICER. The question was on concurring in the amendment made as in Committee of the Whole, which was to strike out the third section and insert other words in lieu of it. The result of that vote is 42 in the affirmative and 1 in the negative. So the amendment is concurred in. The Secretary will read the next amendment. The Secretary read the next amendment, which was to strike out the fourth and fifth sections, and to insert the following section in lieu of them: Sec. —. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void. The amendment was concurred in. The amendments were ordered to be engrossed and the joint resolution to be read a third time. The joint resolution was read the third time. The PRESIDING OFFICER. This joint resolution having been read three times, the question is on its passage. Mr. JOHNSON. I ask for the yeas and nays. Several SENATORS. The yeas and nays must be taken, of course. The yeas and nays were ordered; and being taken, resulted — yeas 33, nays 11, as follows: YEAS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner,Trumbull,Wade, Willey, Williams,Wilson, and Yates— 33.

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NAYS—Messrs. Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Norton, Riddle, Saulsbury, and Van Winkle—11. ABSENT—Messrs. Brown, Buckalew, Dixon, Nesmith, and Wright—5. The PRESIDING OFFICER. The joint resolution is passed, having received the votes of two thirds of the Senate.

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Reconstruction. —————————

SPEECH OF HON. T. O. HOWE,
of WISCONSIN,

IN THE UNITED STATES SENATE, June 5 and 6, 1866. The Senate having under consideration the blot' resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States— Mr. HOWE said: Mr. PRESIDENT: At some time during this debate I purposed to state to the Senate my apology for the vote I am going to give. Perhaps the Senate would as lief listen to it this afternoon, or at least as lief allow me to state it this afternoon as at any time. I am going to vote for the constitutional amendment now pending. I shall vote for it regretfully, but not reluctantly. I shall vote for it regretfully, because it does not meet the emergency as I hoped the emergency would be met; but I shall not vote for it reluctantly, because it seems to me just now to be the only way in which the emergency can be met at all. Mr. President, in January last I submitted to the Senate a resolution which contained an embodiment of my own idea of the duty devolved upon Congress in this juncture. By that resolution I proposed to employ the legislative power of the nation to organize provisional governments for each of those communities which had destroyed, each for itself, the only government which the Constitution of the United States permits to a State of the American Union. That resolution was made the occasion of considerable debate, but never yet has attained to the honor of a reference to a committee. Perhaps it is the only instance on record of a resolution being offered to this body without sufficient merit to secure a reference. And since that resolution seems destined to remain here and to haunt the Senate Chamber without the poor right of burial in a standing or a special committee, and since I myself this afternoon am about to part company with it, and to embrace the idea embodied in the report of the committee of fifteen, I desire to say once more, for the satisfaction of all who may hereafter meet the ghost of my poor resolution stalking about among the archives of the Senate Chamber, that in my judgment, after having been intimate with it for a very long time, it is a perfectly honest ghost, and I desire to say more, that after considering carefully and diligently each one of the plans which have been submitted here time after time —rather ghostly, it seems to me, all of them — my own plan is still my favorite. I want to say one thing more: that, instructed as I am now by a debate of more than four months' duration, a debate which has employed the best intellect of the country here and elsewhere, the single idea submitted in that resolution is, in my judgment, the only plan of which it can be truly said that it is entirely consistent with itself. If it be objected to it, that it is not consistent with the Constitution, then I am bound to say to the Senate that no plan yet submitted here or acted upon elsewhere is consistent with the Constitution. If that resolution cannot be defended upon constitutional grounds, neither can the proposition of the Senator from Nevada or the plan now submitted by the committee of fifteen be defended. And no plan is so utterly defenseless as that of the President himself. They tell us that these States are still in the Union, and that my resolution would drive them out of the Union. Not at all, sir, the furthest from it possible. We do not look to statutes to see what is or is not within the Union. The boundaries of the Union are defined by treaties. Louisiana is in the Union, because by treaty with France we secured her to the Union. Texas is within the Union, because by treaty with Mexico we secured her to the Union. And these States, if you please to call them so, these communities, as I call them, will remain in the Union until by treaty with some Power outside or organized inside we consent to let them go out of the Union. It is said that such a resolution as I proposed would effect the very object at which the rebellion was aimed. What was that? They aimed, if I understood their purpose, to throw off utterly and altogether the authority of the United States. Their proclamation was that within their respective limits the United States should exercise no control whatever. The resolution which I submitted to the Senate asserted, on the other hand, that the United States within those respective limits should exert the sole control for the time being. Is there no difference between the two propositions? We called them traitors because they denied that the United States had any authority within their limits. Is it traitorous to say that the United States has more power than it had before they raised the standard of rebellion?

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But if it be not disloyal to the United States to assert that stretch of authority on its part it is said it is disloyal to the States; that it tramples upon the rights' of the States. How does it trample upon the rights of States? I admit, of course, that the authority of this Government is limited. I admit that we can exercise no authority but what is delegated to us in the Constitution. I admit that all the rest of the authority belonging to Government is reserved to the States. We have no quarrel and no dispute upon these points. I admit that the right of representation is a right which is given by the Constitution to the several States. But I desire to say once more to the Senate that that right of representation is not a right given to all States. Nobody claims it for any State outside of the American Union, and I say it belongs to no State inside of the American Union unless it conforms to the conditions which the Constitution imposes upon every State. When those conditions are set aside and abjured, then that right falls. It can be claimed by no State inside of the Union unless it be conceded to the State first by the Congress of the United States. It is the lack of that concession which prevents Colorado from having representation here today. She claims to be a State. She has adopted her constitution. She has sent here her representatives. The two Houses have agreed by a majority of their votes to admit them. But the President has vetoed the bill, and so there is upon the statute-book no law authorizing them to send representatives here, and they are not received. But does that exclude Colorado from the Union, or does it trample upon the right of a State? That right has never been conceded to her by Congress yet, and she does not insist upon the exercise of it until it be conceded. But you tell me this right has been conceded once by Congress to Louisiana, to Mississippi, and to Alabama. Yes, Mr. President, it was conceded once to those communities and to each of the others which have been in rebellion. How, then? Answer me, what is the consequence of that? When the right and the character of a State was conceded by an act of Congress to the State of Alabama or the State of Mississippi, did the United States stipulate forever thereafter to exercise none of the powers which she had before exercised in those limits under any circumstances whatever? When Congress first conceded the right to Alabama to send her representatives here, was that a right which continued to her under all circumstances whatever beyond the power of forfeiture? If so, you must concede that that right remained during the very heat and strife of the war. If she could not forfeit that; if it was a continual, perpetual right, your doors would have been bound to swing open at the knock of her representatives, if she sent them here when the war was at its height, and you were protected against having representatives from your direst and deadliest enemies in these Halls only by the simple circumstance that they were a little too chivalrous or not sufficiently impudent to send them here to claim the right. It will not be asserted that that right cannot be forfeited. No Senator on this floor who really loves the authority of this Government and means to abide by it and uphold it will pretend that Alabama, while this war was waging, could send her representatives here. "Oh," but you say, "why not let her send them here if they were loyal?" Why, sir, Alabama, while she was disloyal, would not choose loyal representatives, but if she did choose loyal representatives her representatives could not come this side of her lines without the permission of your Army. It was an offense against the laws of the United States for any man, no matter what were his personal dispositions, to come through those lines without the permission of the Government. There was a wall built up between everybody on that side and on this; not merely Congress, but your military boundaries were closed against every man, let his personal dispositions be what they might, coming from the rebellious districts. But, Mr. President, I say that this right conceded to those States was not an absolute, unconditional, continuing right. It is a right to be exercised only under certain conditions. Every State claiming the right to send representatives here must show, first, the authority of Congress to do it; secondly, must show that they have a government, administering their own local affairs, which is republican in form; thirdly, it must be a State which has no engagements and no treaties either with another State or with any foreign Power; for that is expressly prohibited by the Constitution to all States; and fourthly, it must have a government, every officer of which, executive, legislative, and judicial, must be under an oath to support the Constitution of the United States; because the Constitution expressly forbids that any authority of government shall be wielded in any State by officers who are not under such an oath. I insist that whenever a State violates either of these conditions it forfeits in law, and Congress may declare a forfeiture in fact, of the right to make its own laws, and of the right to participate in making our laws. Congress may declare that forfeiture in fact, because if you have not the authority to declare that forfeiture you cannot enforce these clauses of the Constitution. If the State of Mississippi sees fit to set up a government which is not republican but monarchical in form, to vest all the local power in the hands of a single individual for life, and in his heirs, and if you cannot interfere with the exercise of that authority by such a tribunal, by such a form of government, and strip him of it by an act of Congress, that clause of the Constitution is a dead letter. There is no other remedy to cure such a wrong as that. And so if they make treaties with other States or with foreign Powers;

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and so if they refuse to let their officers take the oath to support the Constitution of the United States, unless you have the power to resume the function which you delegated to her as a State, you cannot enforce those three commandments of the Constitution. Sir, I admit it is hard to degrade a State to a Territory; I admit it is a harsh remedy to take the prerogatives of a State from a great community; but it is not so harsh after all as to take their lives; and when by the express words of your statute they forfeited their lives and you remit them that, is it worth while to talk of the harshness of taking these prerogatives of government from them? But you say that although this right of local government is forfeited by the disloyal majority, it still lives in the loyal minority. I should say it was a very harsh and unjust remedy to take wantonly the prerogatives of a State from a loyal minority, simply because the majority about them were disloyal and traitorous. It has been said, where you find ten loyal men in a State there is the State, and you must let it be and exist. Mr. President, there is some plausibility in that. I meet it by asking where you can, in any one of these communities, find the local power in the hands of ten loyal men. Nay, I ask you where, in any one of these communities, outside of Tennessee, and perhaps Arkansas, you can find ten loyal men exercising any portion of that local authority? Loyalty is not tolerated in these local governments. Talk to the American Congress about stripping loyal men of authority in South Carolina or elsewhere! Loyal men have no authority there, they have had no authority from the beginning of this struggle. Talk about the harshness to the loyal men of taking the prerogatives of States from these communities! I do not see the hardship to loyal men. Every particle of local authority vested by the Constitution in a State had been secured to the hands of traitors, and by the exercise of that power they had forced whatever of loyalty there was in the community into an unholy and unwilling subserviency to the cause of rebellion. Is it harsh to loyal men to take power from the hands which use it thus? I do not conceive it to be so. When we take power from or deny power to the majority in these rebellious States, we simply deny it to the worst enemies the loyal men in these communities have or can have; and when we find that power in the hands of their direst enemies, to wrest it from them, it seems to me, is not only the highest duty which we owe to them, but for it we have the clearest warrant of the Constitution. I do not agree with the Senator from Vermont [Mr. Poland] that the framers of the Constitution never contemplated such an emergency as this, and therefore never provided for it. I say, in the express letter of the Constitution you have the authority to do just what I ask to have done. I will read it. After enumerating certain express powers which Congress may exercise, the Constitution declares that it shall have power― "To make all laws which shall be necessary and proper for carrying into execution the foregoing power and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof." If the power which that resolution asserted is not given there you cannot frame a clause which would clothe Congress with that power more clearly. Mr. President, upon this question I have said all, perhaps more than I ought to have said. The question has passed from the consideration of Congress. There were difficulties outside of the Constitution in the way of the exercise of that authority, no matter how clearly it resided in the Congress of the United States. When Congress met here the President of the United States himself had for months been busy with the work that he called reconstruction. He had exercised, himself, the very authority which I claimed for Congress. He had abolished every one of those governments by a word of his mouth, and had done just what I asked Congress to do — established provisional governments. He had taken steps to supersede those which he called provisional governments with others which he called State governments, but which are today only provisional governments, nothing more nor less. It has seemed good to the committee of fifteen not to disturb unnecessarily what the President had done, but to take his handiwork and to work it into some complete plan of reconstruction.. Hence, it seems to have been thought advisable by them to let these organizations stand or stagger as they might, to do what they could with the work of home government, and to take the question from that point and settle if they could some terms upon which the other right, the right of representation, should be conceded to them by Congress. They have finally submitted, or there is submitted to the Senate, a joint resolution for an amendment of the Constitution of the United States. Allow me briefly to run over its propositions. It first proposes to declare that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." That is the first proposition. Is there any objection to it? The Senator from Indiana [Mr. Hendricks] yesterday, I think, assailed this proposition as one calculated to degrade the great right of American citizenship, a right which he seemed to think should be held

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exlusively to the use and behoof of the nobler and loftier races of the world. It degrades, does it, sir, the character of American citizenship to admit all men to it who are born and reared upon American soil? Mr. President, I dissent from that idea altogether, and I was surprised to hear it fall from the lips of the Senator from Indiana, of all men in the world. I thought he was a Democrat. I thought he boasted himself the champion of equal rights. I thought that was the bread and the meat and the drink of his political creed. I did not think he belonged to that class of nobility that measure their exaltation by the number of negroes they have under their heels. I did not suppose he felt it necessary to stand upon the necks of human beings in order to secure his patent of nobility; and I was surprised to hear this sentiment fall from his lips. I differ from it so widely and so radically as this, that I say there is no one proposition in the proposed amendment, and nothing in the Constitution as it stands, which will do so much to elevate the character and the dignity of American citizenship as that simple proposition. Nay, sir, I go further, and I tell you you will never have occasion to boast but you will always have occasion to blush for American citizenship until the time shall come when you can say to all the world that American institutions do not raise a man that is not worthy to be an American citizen and is not clothed with its panoply. I will vote for this proposition, and I shall not fear that American citizenship will be degraded by incorporating this clause in the Constitution. It proposes further to say that― No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Sir, does any one object to putting that proposition into the Constitution? Does any one on this floor desire to reserve to any State the right to abridge the privileges or immunities of citizens? Do you do it in the State in which you reside, sir, [Mr. Hendricks in the chair,] and whose legislation and institutions you have done so much to mold? Is it done in any of the States represented here? I cannot deny it for all of them; but for many of them I do happen to know that no such abridgment of privileges or immunities is tolerated. Is it necessary, however, to incorporate such an amendment into your Constitution? Do you find in any of these communities seeking to participate in the legislation of the United States an appetite so diseased as seeks to abridge these privileges and these immunities, which seeks to deny to all classes of its citizens the protection of equal laws? Yes, Mr. President, I am sorry to say, we do find just such an appetite, and it is necessary to amend your Constitution in this year of our Lord in order to prevent the gratification of that diseased appetite. It is known to the wide world now that but for the authority which has been exerted on the part of the United States most of these communities which now seek the right to participate in our legislation would have denied to a large portion of their respective populations the plainest and most necessary rights of citizenship. The right to hold land when they had bought it and paid for it would have been denied them; the right to collect their wages by the processes of the law when they had earned their wages; the right to appear in the courts as suitors for any wrong done them or any right denied them; the right to give testimony in any court, even when the facts might be within their knowledge — all these rights would have been denied in most if not all of these communities but for the fact, for which I have once before rendered and now again render thanks to the President of the United States, that he sat his face against these provisions or most of them, and said he would not tolerate them nor allow them to be sanctioned in any one of these communities. Most of these pretenses have been abandoned in most of these communities; but, sir, these are not the only rights that can be denied; these are not the only particulars in which unequal laws can be imposed. I have taken considerable pains to look over the actual legislation which has taken place in these several communities with reference to their several constituencies. I could, it seems to me, interest the Senate for a long time by reading from that legislation, but I shall not delay the Senate longer than to call its attention to a single instance. I read not long since a statute enacted by the Legislature of Florida for the education of her colored people. I read it in a Florida newspaper. The paper boasted itself that Florida was the first State to step forward and attempt the work of educating the children of her colored population. And now, sir, I ask the attention of the Senate to the provision which that Legislature made for the education of their colored population. They make provision for the education of their white children also, and everybody who has any property there is taxed for the education of the white children. Black and white are taxed alike for that purpose; but for the education of colored children a fund is raised only from colored men. It amounts to one dollar a head upon all colored males between the ages of twentyone and fifty-five years. There were in 1860 between twelve thousand three hundred and twelve thousand four hundred colored males between the ages of twenty and fifty-five in Florida, so that that fund would yield about twelve thousand dollars dedicated to the work of educating the colored children of Florida — not a magnificent

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endowment, one would think. But how is it to be expended? First, there is to be a superintendent of colored schools for the State to be paid out of it, and he is to receive a salary of $2,000. That reduces it essentially. Next, there is to be an assistant superintendent of colored schools for each county at $200 a year. There are in the State of Florida, I believe, thirty-nine counties, which would give $7,800 to the assistant superintendents. Add that to the salary of the State superintendent, and it takes $9,800 from the school fund to pay the superintendents, leaving $2,200 to pay the teachers. But the fund is not left quite so destitute as that; they require each one of the teachers to pay five dollars to the fund to get a license to teach. They are to be examined, their fitness ascertained, and if permission is given them to teach they are to pay five dollars, and that goes to the fund. That swells it; when that license is purchased they can set up a school. Into that school, however, it is worthy of remark that no child can go without permission of the superintendent or his assistant, and no child can stay a day without the permission of the superintendent or his assistant, and the teacher who has paid five dollars for the permission to teach cannot hold that permission a day longer than the superintendent or assistant superintendent sees fit to allow, for the statute expressly authorizes the superintendent or assistant superintendent to vacate or annul the certificate whenever he shall see fit for incompetency or "other good cause" — any cause which seems good to the superintendent or assistant superintendent. There, Mr. President, I have submitted to you one of the statutes in one of these States, as you will have them to be, touching one of the great interests not only of this colored population but of the State itself. and I ask you, any of you today, if in view of one such fact as that you dare hesitate to put in the Constitution of the United States a positive inhibition upon exercising this power of local government to sanction such a crime as I have just portrayed. Again, sir, we propose to change the basis of representation in the different States. We propose to base it still upon numbers; but it is proposed to say that if in any State the right of suffrage is denied to any portion of its male inhabitants over the age of twenty-one years, then a certain portion of the inhabitants of that State shall be excluded from the numbers counted in the basis of representation. Is that objected to? Yes. Is it not just? Will you tell me what reason there is why when three million people inhabiting these States are denied the right to vote for Representatives, other three millions should have a double representation in the Congress of the United States? To all the people who are allowed to choose Representatives in those States we give by this amendment just the representation that we give to the same number of people in any other State. The effect of it simply is to say that those people who are not allowed to choose Representatives shall not be represented. They cannot be represented; it is a physical impossibility. It is no use to talk about three million colored people being represented, when not one of them is consulted in the choice of Representatives. The Representatives chosen for those men are representing some other men, not them. I am sorry to have to put that clause into our Constitution, as I am sorry for the necessity which calls upon us to put the preceding clause into the Constitution. I wish there was no community and no State in the United States that was not prepared to say with my friend from Nevada that all men may be represented in the Congress of the United States and shall be represented and shall choose their own Representatives. That is the better doctrine; that is the true doctrine. I would much prefer, myself, to unite with the people of the United States in saying that hereafter no man shall be excluded from the right to vote, than to unite with them in saying that hereafter some men may be excluded from the right of representation. Sir, to the debate which we have had on this question of the right of suffrage I have listened with a great deal of interest. I trust I have derived some instruction from it, but after all it is not so much as I think would have come to me but for the fact that since I have first known politics at all, I think I have known that no State can deny to any large portion of its adult male population the right to vote, the right to an equal voice in the making of its laws and the choice of its officers, without danger to that State, the whole community, as well as great wrong to the individuals excluded. I know it is said that these colored people who have just been released from slavery down there in these communities are not fit to vote. I admit it. Who is fit to vote? Only the man who always knows how to vote right, and who always will vote right, is really fit to vote; and, tried by that standard, how many of us are qualified to vote? These people, it is said, are very ignorant, very debased, utterly uncultured and untutored. Yes, Mr. President, I believe that is so. Who made them so? The very men who you insist shall have the exclusive right of voting there. Is it more dangerous to be an ignorant man than to make an ignorant man? Tell me that. Is he a more dangerous member of the State who simply is ignorant, than he who having the power to command otherwise makes men ignorant? The men in whose hands you want to pile up authority are the men who have imposed this ignorance upon that black population down there. You say they are degraded. The degradation is not natural to

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them; it is imposed upon them, and you know it; and the men who have done it you want to crown. God knows there are no people more unfit to exercise the right of suffrage than they are, except the men who made them such as they are, and those men are still more unfit. But, Mr. President, I beg leave to say to you that ignorance is not the worst quality that you have to contend with in the State. The man who does not know how to vote is not so unfit to vote, after all, as the man who knows how to vote and will not vote as his convictions dictate. He is the dangerous man. He is the man that imperils all your laws. He is the worst enemy in republican States and in all States. He is the man against whom you have most to guard. The ignorant man necessarily has no predetermination to vote wrong; he is just as willing to vote right as wrong; and he can be instructed to vote right just as readily as to vote wrong if you take the same pains to instruct him in the right that you do to instruct him in the wrong, provided he is honest; and honesty dwells with ignorance just as readily, and, thank God, just as lovingly, as it does with culture, and you will find it there as often. As I said before, I would much prefer to unite with the people of the United States in laying the command upon all men to permit all men to vote than to concur in laying the command on any portion of our fellow-men to go without the right. If, however, these communities upon whom this provision, it is supposed, will work most disadvantageously, do not like it, the remedy is plain and simple in their own hands. They have only to put the ballot into the hands of these men, allow them to choose Representatives, and Representatives will come here representing the whole of their population. But again, sir, it is proposed to say that no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, in short, under the United States who has ever taken an oath to support the Constitution of the United States and then violated that oath and become a traitor to the Government of the United States. That presses hard. That is going to curtail the rights and the privileges of some of the men in these rebellious States. I ask the Senate to pause upon this proposition. I ask the Senate to consider this proposition carefully before they assent to it. It declares that such a man as Jefferson Davis, or Henry A. Wise, or John Slidell, or James M. Mason shall not hereafter hold office under the Government of the United States unless two thirds of Congress shall hereafter concede that privilege to him. It is a pretty harsh thing to say. I feel it keenly; I feel it sensitively. It is precisely what the President, I am told, has said about me and about men who think as I do. It is what the Secretary of the Treasury has said about men who think as I do, that we shall not hold office, offices which they have the control of and can exclude us from. I have all along thought this harsh. I have thought it was especially harsh to be told by the Secretary of the Treasury, who is particularly anxious and has called upon us to remit our test oath so that he can employ traitors in the service of the Government of the United States, that men cannot hold office under him who were guilty of no offense but thinking as I do. I have never considered myself criminal for anything which I think, for any vote which I have given, for any word which I have spoken. Doubtless I am somewhat guilty; but a man so charitable and tolerant as the Secretary of the Treasury, a man whose charity is so broad that it covers all this rebellion and the guilt by which it is accompanied, ought to have charity enough to forgive such political sins as mine. Sir, do not make this declaration unless you think it is just. I shall vote for it, because I feel as the Senator from Kansas [Mr. Lane] said the other day he felt, that men who have forfeited their necks to the halter can very well afford to commute by refraining from taking office for a short time. I do not think the Government of the United States can be accused of a great want of magnanimity when it does no more than to take traitors down from the scaffold, even if it does neglect to confer office and dignity upon them for the time being, and so I shall vote for this proposition. But again, we propose to declare that the obligations of the United States incurred in suppressing this rebellion shall be met as honest men meet all their obligations. I will not argue that proposition to the Senate. I do not know that it is likely to be opposed. We propose to say, furthermore, that the debt which has been incurred in the effort to overthrow the Government of the United States shall not be paid; nor shall the United States ever be taxed to pay the value of the slaves we have made free, and were compelled to make free, to save the life of the nation. Upon the features of this amendment I propose to spend no further time. It is of no value, we are told, unless the people adopt it. That is true. Will the people of the several States assent to this amendment of the Constitution? I do not know. I am not endowed with the gift of prophecy. I cannot tell. It ought to become a part of your Constitution; that I know; and I am very much in the habit of thinking that what ought to be done will be done. But what alternative is there? These communities have no representatives upon this floor; they wish to have them; we want them to have representation here. They ought to have them. Let them assent to these most

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reasonable, most just, and most necessary propositions, and representation will be conceded to them. There is no alternative that I know of except that presented in what is called the President's policy. Mr. HOWARD. What does that mean? Mr. HOWE. What does that mean? It means this: that although these people are not fit to make laws at home, and cannot be allowed to make them, yet they must be allowed to send representatives here to participate in making laws for the United States. That is what it means. Sir, we have heard a good deal about the President's policy. I should not feel called upon to review it here but for the fact that it is held up to us as a model plan, because it so sacredly and religiously respects the rights of States. It respects the rights of States, and therefore is constantly held up before us as being utterly at variance and at war with the idea which I submitted in January last. Why, Mr. President, it is upon all fours precisely what that idea was, except that the President established the provisional governments, while I thought that Congress should establish them. The first act of the President with reference to these communities was to overthrow every semblance of government within them. The second act was to concentrate every particle of that local authority in the hands of a single man appointed by him in each one of those communities. That is what you call respecting the rights of States, is it? That is the way you would have the rights of States respected! Listen to a clause of that organic law which the President enacted for the government of these communities. Omitting the preamble which recites his reasons for the step he was about to take, he proceeds to say: "Now, therefore, in obedience to the high and solemn duties imposed upon me by the Constitution of the United States, and for the purpose of enabling the loyal people of said State to organize a State government, whereby justice may be established, domestic tranquility insured, and loyal citizens protected in all their rights of life, liberty, and property, I, Andrew Johnson, President of the United States, and Commander-in-Chief of the Army and Navy of the United States, do hereby appoint William W. Holden"― What for? To be "provisional governor of the State of North Carolina, whose duty it shall be, at the earliest practicable period, to prescribe such rules and regulations as may be necessary and proper for convening a convention, composed of delegates to be chosen by that portion of the people of said State who are loyal to the United States, and no others, for the purpose of altering or amending the constitution thereof." That was the proclamation sent forth to Mr. Holden in North Carolina. A proclamation like that was sent forth to Mr. Sharkey in Mississippi, and to some individual in each one the other States. That single clause which I have read to you, not only ignored the authority of Governor and Legislature and judge and municipal officer in these several States, but it absolutely ignored, set aside, trampled upon their organic laws and their constitutions. Some of these States, and most of them, had clauses in their constitutions prescribing the very mode in which their constitutions could be amended. The President of the United States ignores them all, disregards them all, and says to a man. "All the authority belonging to that State I put in your hands from this time forward; go on irrespective of your statutes and your constitutions; call together your people, prescribe the districts which may elect, prescribe the qualifications of those who may vote, and thus convene a body of men which shall make a new constitution for your State." It is indeed making an entirely new State. Mr. President, in the history of the executive effort to reconstruct these States many very noticeable facts are found. I have been profoundly interested in looking over the journal of these executive efforts to make loyal States out of rebel communities. It was a difficult enterprise, you will see at once upon the face of the thing. That it should not have run entirely smooth I think would have been anticipated by anybody, especially commencing on that plan. I want to call your attention to some of these features. Most of these provisional governors entered upon the work assigned to them by issuing proclamations of their own, telling their respective subjects what was expected of them and how to do it. Governor Marvin, who was appointed provisional governor of Florida, and who, I believe, was one of the most intelligent of them all, issued a proclamation to his subjects; for you see they were all subjects of; his, not constituents of his. He derived no power, no authority, from them whatever. He represented the President. As these were the people put into his hands to govern and to control for the time being, he issued a proclamation. He prescribed the qualifications which were required to enable a man to vote. He required them to be loyal; that is to say, he required them to take an oath that they would be loyal; and he required that nobody should vote who had been a traitor unless he had been pardoned; but he says: "Where the person offering to vote comes within the exceptions contained in the amnesty

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proclamation"― That is, where he is a $20,000 man, I presume― "and shall have taken the amnesty oath, and shall have made application to the President for a special pardon through the provisional governor, and shall have been recommended by him for such pardon, the inspectors or judges of the election may, in most instances"― What? "properly presume that such pardon has been granted, though, owing to the want of mail facilities, it may not have been received by the party at the time of the election." In other words, if, on the morning of the election, a man who has not been pardoned shall take the amnesty oath, and get the governor's recommendation for a pardon to be sent to Washington, the inspector of the election may presume he has been pardoned, but has not received his pardon for the want of due mail facilities. That is the legal presumption established for such cases in the proclamation of the provisional governor of the State of Florida. Governor Holden, who took one of these commissions, had some doubts about the right of some of his people to vote. What does he do? He does not look into the law or constitution of North Carolina to settle the question. If my friend, the Senator from Michigan, [Mr. Howard] was appealed to by one of his fellow-citizens to know whether he had a right to vote, I do not precisely know what he would do. I think he would go to the statutes of Michigan, if he did not recollect the law, and I think he would do anything or everything except just what Governor Holden did. What did he do? He wrote to the Secretary of State to know whether such a man could vote or not. The Secretary of State was inquired of as to whether a certain man should vote in the State of North Carolina. This was in execution of that plan which is so very respectful and religiously regardful of the rights of the States. Here is Governor Holden's letter: STATE OF NORTH CAROLINA. EXECUTIVE DEPARTMENT, RALEIGH, NORTH CAROLINA, June 19, 1865. Sir: I shall soon have to give directions to county boards, making provisions for the enrollment of voters. I respectfully request to be instructed whether paroled soldiers will be allowed to vote for delegates to the State convention upon taking the oath of amnesty, or will each soldier have to procure the President's pardon? I am, most respectfully, your obedient servant, W. W. HOLDEN. Hon. WILLIAM H. SEWARD, Secretary of State. Mr. SUMNER. Was it not addressed to the Secretary of State as having charge of our foreign relations? Mr. HOWE. Mr. Holden must have thought he was dealing with a State not in the Union, but out of the Union, and that he must consult with the Department of Foreign Relations to know whether he had a right to vote or not. That did not occur to me. It is very plausible, very probable. I accept that explanation for the purposes of this argument. But, Mr. President, the worst difficulty they seem to have had in getting along with this plan was in South Carolina. South Carolina proved a regular hard nut to be cracked. Several of these governors, when they received their commissions, not knowing exactly what to do with them, especially not knowing who was to pay them for discharging the duties imposed upon them, at once addressed letters to the Secretary of State to know who was going to pay their salaries. They got along with that very well. They were informed that their salaries would be paid upon bills being presented to the State Department, the Department of Foreign Relations. In South Carolina, Mr. B. F. Perry was appointed to be governor of those dominions. Perry seems to have been a little technical, crotchety, I should think. He was here in Washington, I take it, at the time he received his commission. The very first thing he does is to write a letter to the Department of Foreign Relations, dated Willard's Hotel, July 21, 1865: "DEAR SIR: I desire to know what provision has been made for defraying the expenses" Not of the provisional governor, but "of the provisional government in South Carolina; likewise, whether I am allowed a private secretary, and his compensation; also, as to stationery, blanks," &c. This is from the Governor of the sovereign State of South Carolina. "In your communication to me inclosing my commission, you state that I am to receive a salary of

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$3,000, and may draw for the same on your Department monthly or quarterly. As we have no money in South Carolina at this time, it would be a very great accommodation to me to allow me to draw a quarter's salary at this time. If this can be done and you will send me a draft for the same, you will very much oblige me." Then he goes on to ask for further and fuller instructions as to what he shall do. That was rather a poser. The Department of Foreign Relations seemed to have no difficulty in disposing of the mere matter of the governor's salary. They could get along by charging that over to the incidental fund of the War Department; but this undertaking to pay the expenses of that provisional government, and the private secretary, and all these assistants, to say nothing about the stationery of the executive department, was rather a poser; but the Secretary met it. On the very next day he replied, as follows: DEPARTMENT OF STATE, WASHINGTON, July 22, 1865. Sir: I have received your letter of yesterday, and trust that the favorable anticipations which it expresses in regard to there organization of the State of South Carolina will be realized. The inevitable and indispensable charges attending the measure, including your salary as provisional governor, will be paid by the War Department as an expense incident to the suppression of the rebellion. You will, consequently, frame and submit to that Department an estimate of those expenses, in order that the necessary arrangements for defraying them may be made. I am, sir, your very obedient servant, WILLIAM H. SEWARD. His Excellency B. F. PERRY, Provisional Governor of South Carolina, now in Washington. The Secretary of Foreign Affairs had to play a little shy of that demand, but he met it honorably and honestly. Mr. Perry evidently seemed to think that as this cotillion was arranged by the United States the United States should pay for the music. The Secretary of State seems to have concurred in that view, and although he was a little afraid it might break him, he entered into the arrangement, but he says to the sovereign State of South Carolina, "It is only the inevitable and unavoidable expenses;" that is to say, you must economize all you can, for we do not know about this thing. I should like to read other incidents transpiring in the progress of these efforts, but I have detained the Senate too long upon that subject. Let me conclude this part of the history with saying that after a fashion in almost all these communities, all, I believe, with the exception of Texas, the President, with the assistance of the Secretary of State, did succeed in setting up organizations which they proceeded to name State governments. Let them hereafter be known as State governments. But, sir, were these governments clothed with the prerogative of States? Did the President so regard them? Did the Secretary of State regard them as States clothed with the power and with the attributes of States and vested with the authority of States? The Secretary tells us in a letter which he addressed to Governor Marvin of Florida on the 12th of September, 1865, how he regarded them. He says: "Sir, your Excellency's letter"― That was really very respectful in the Secretary of State. That looks as if he recognized them as sovereign States. He addressed Governor Marvin as "your Excellency"― "Your Excellency's letter of the 29th ultimo"― That was the letter in which he inclosed the proclamation from which I read an extract a short time ago― "with the accompanying proclamation has been received and submitted to the President. The steps to which it refers, toward reorganizing the government of Florida, seem to be in the main judicious, and good results from them may be hoped for. The presumption to which the proclamation refers, however, in favor of insurgents who may wish to vote, and who may have applied for but not received their pardons, is not entirely approved." Not entirely approved — almost approved, not quite. "All applications for pardons will be duly considered, and will be disposed of as soon as may be practicable. It trust, however, be distinctly understood that the restoration to which your proclamation refers will be subject to the decision of"― The President? No― "of Congress."

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That was the notice personally served upon the Governor of Florida by the Secretary of State, dispatched on the 12th of September, 1865. Mr. President, as further evidence of the light in which the President and Secretary of State regarded these reconstructed governments down there, let me call your attention to a telegram sent from the Department of State on the 11th of November, 1865. That is after the Secretary of State had been notified that Governor Holden, in North Carolina, had gone on, had assembled a convention, and had the constitution amended, the amendments adopted by the people, and the government elected under it, the whole machinery set up, the fires under the boilers, all ready to start the engine. Holden thought the engine was going to start, and that he had to start, too, that is to say, stop playing provisional governor. The Secretary of State seems to have been afraid that Holden would start and let the new government run on; he telegraphed to him on the 11th of November 1865, as follows: "The President directs me to say that he expects you to continue in the exercise of the functions of provisional governor of North Carolina until you shall have been relieved by directions from him." Thus you see in that community which you insist upon calling a State because it was once made a State, the President not only intervened at the close of the rebellion and wiped out of existence every one of the local tribunals, put the whole power in the hands of a single man, authorized and ordered him to go on and reorganize a new government, but after that new government had been organized he still told the one-man power to stay there in spite of these new tribunals which had been chosen by the people to represent them. "Stay there because the President tells you to stay there" or "stay there until relieved by the President." That dispatch was sent on the 11th of November. It was not until the 4th of December that the Secretary of State wrote to Governor Holden: "The time has arrived when, in the judgment of the President of the United States, the care and conduct of the proper affairs of the State of North Carolina may be remitted to the constitutional authorities chosen by the people thereof without danger to the peace and safety of the United States." Almost a month after he is notified of the organization of this government the President holds that whole power belonging to a State in the hands of a single individual, notwithstanding the people had done everything which they had been told to do to regain possession of that power. So in Mississippi, on the 8th of September the Secretary of State addressed to Governor Sharkey this letter: "Sir, your letter of the 28th ultimo, accompanied by a copy of the amended constitution of Mississippi, as adopted by the recent convention of that State, has been received and will engage the early attention of the President." On the 19th of October Governor Sharkey informed the Secretary of State as follows: JACKSON, Mississippi, October 19,1865. SIR: I have the honor to inform you that Benjamin G. Humphreys, who was elected to the office of Governor of the State at the late election, has been duly installed into office, and that all the other State officers have been duly qualified. The civil constitutional government of the State is now complete, and the Legislature is in session. Very respectfully, your obedient servant, W. L. SHARKEY, Late Provisional Governor. Hon. WILLIAM H. SEWARD, Secretary of State. On the 3d of November the Secretary of State sent a telegram to Governor Sharkey, addressed to "his Excellency William L. Sharkey, provisional governor of the State of Mississippi, Jackson." This is in reply to Sharkey's communication in which he calls himself "late provisional governor," and in which he tells him that the Governor and all the officers elected by the people had been duly installed, qualified, and taken possession of their offices. In reply to that the Secretary says: "Your letter of the 19th ultimo has been received. It is the expectation of the President that you will continue your functions as provisional governor until further notice from this Department." There was his new machine actually set running by a blunder of this provisional governor. He did not know but that when set up it was well enough to let it run. He informs the Secretary of State so. A few weeks after that, the Secretary tells him that he must continue to play provisional governor of Mississippi until he is otherwise ordered by the Department. I am not objecting to these things; they are all right enough; but, Mr. President, [Mr. Hendricks in the chair,]

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when such antics are attempted to be played in the State of Wisconsin and the State of Indiana, you and I will have something to say about it, I take it. When such antics as these are attempted to be played in States which are States, States which arc sanctioned by the Constitution, I take it that we shall have something to say about it. I comment upon these things because I find them in that policy and in that plan which is said to be so peculiarly respectful, so tenderly regardful of the rights of States, and because this policy is championed by those who assert that when you have once committed these prerogatives to a community they remain there forever; you cannot interfere with them under any circumstances whatever. But, sir, the time did come, in the progress of events, when the notice went forth from the State Department to these provisional governors, saying to them, "Retire; let the new governments take possession." Were they made States thereby, clothed with the full powers of States, permitted to exercise the powers belonging to States under the Constitution? Let us see. The people of one of the counties of the State of Alabama, claiming the right to choose a judge of probate, a right secured to them by the constitution and laws of the sovereign State of Alabama, seem to have elected one Raphael W. Semmes to be judge of probate. Raphael W. Semmes is a historical character. I understand he is a very able man, and I dare say would make a very good judge of probate. As suggested by my friend from Ohio, [Mr. Wade,] if he has never had any actual practice in administering estates he has undoubtedly been the occasion of making a great many estates to be administered upon. The people there thought, it seems, that he was the best man they had for judge of probate, and they elected him. The news came up here to Washington that he had been elected. An order was issued. From whom? Not from any of the tribunals of the State of Alabama, but from Brevet Major General Charles R. Woods, who seems to have been in command of the department of Alabama: HEADQUARTERS DEPARTMENT ALABAMA, May 17, 1846. In compliance with instructions from the President of the United States, it is hereby directed that Raphael Semmes be not permitted to hold or exorcise the functions of judge of the probate court of Mobile county, or any other civil or political office of trust while he remains unpardoned by the President. By order of Brevet Major General Charles R. Woods: A. RAMSEY MINNINGER, Assistant Adjutant General. Judge Bond will perform the duties of the office in the mean time. That is a pretty good note for a major general. Recollect it is by command of the President of the United States, who is taking such excellent care of the sovereign rights of States. He tells the people of this county in Alabama, "You cannot elect Mr. Semmes for your judge of probate," and having done so, he says further, Mr. Semmes you stand to one side; Mr. Bond, you be judge of probate." Who is going to administer upon estates in that county hereafter, I should like to know? If the right of Judge Bond to administer is called in question, what is the evidence of his right? The constitution and the laws of the State of Alabama require that the judge of probate shall he elected by the people. They elected Mr. Semmes. General Woods says to him, "You must not play judge of probate; let Judge Bond do this." Judge Bond has got the commission of General Woods as his authority for administering upon the estates of those who may happen to die in that particular county. Mr. HOWARD. By whose authority was that done? Mr. HOWE. By the authority of the President of the United States. Sir, the best advice I can give to the people of that county is, not to die until a new judge of probate is elected. I am afraid there will be trouble in the settlement of their estates. [At this point, the honorable Senator yielded to a motion that the Senate proceed to the consideration of executive business.] —————— WEDNESDAY, June 6, 1866. The same subject being again under consideration— Mr. HOWE said: Mr. President, when the Senate adjourned last evening I was endeavoring to show that not only did the President of the United States recognize and exercise the power of the General Government to establish provisional governments for the seceded States, but that he recognized so absolute a control over them on the part of the Government of the United States that he did not recognize even the new governments organized through the intervention of his own governors as clothed with the attributes and prerogatives of States. I referred

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to the fact that a judge of probate in a county of Alabama had been dismissed by the order of the President from his office, and that another man, not elected by the people, had been selected to discharge the duties of that office. There is another instance. In New Orleans, in March last, the people elected a man by the name of Monroe to be mayor of that city. General Canby, it seems, being in command there, thought he was not a fit man to discharge the duties of mayor of that city, and we learn by a dispatch dated New Orleans, March 19, this fact: "All the newly elected city officials were duly installed today with the exception of Mayor Monroe and Mr. Nixon, an alderman, whose functions have been temporarily suspended as coming within the exceptions to pardon made by President Johnson's proclamation. M. G. Roseau has been installed mayor pro tempore by order of General Canby." Thus, in Alabama, judges elected by the people are set aside; in New Orleans, mayors and aldermen of cities elected by the people are set aside; and these men were elected under the authority of these new constitutions and the laws enacted in accordance with these new constitutions! Sir, let me be distinctly understood. I am not complaining of the President of the United States or of General Canby for setting aside Judge Semmes, or Mayor Monroe, or Alderman Nixon. These are not isolated cases, but a great many others like unto them have happened in other States of that portion of the Union. I am not complaining of these acts. I agree entirely with the President, that Judge Semmes is not fit to discharge the duties of judge of probate. I have no doubt that Mr. Monroe is entirely unfit to act as mayor of the city of New Orleans. What I wish to call attention to is this: that Judge Semmes is no more unfit for judge of probate than the people of that county are to elect a judge of probate. When the President of the United States finds that Judge Semmes is not fit for judge of probate, he gives the most conclusive testimony in the world that the people who elected Judge Semmes were not fit to make an election. There was no misunderstanding about who Judge Semmes was. They knew all about him. They elected him because he suited them. So of the election of Mr. Monroe. Mr. Monroe was satisfactory to the people of the city of New Orleans, and therefore they chose him. In the judgment of the President, he was unfit for mayor: he had not been pardoned. The people of New Orleans cared nothing for that fact. They would just as lief have a man to serve them who had not been pardoned as one who had; and, as far as that goes, I suspect I should agree very much with the people of New Orleans. I do not think there is any great distinction to be made between those who are not pardoned and those who have been. I mention these facts for the other purpose of showing that the President does not regard these communities as States like the State of New York or like the State of Ohio. He would not attempt to do any of these things in either of those States or in any State which had held fast to the Union and never had dissolved its relations with the Union. And I cite them for the purpose of asking the question, how it happens that what the President could do without an act of Congress, Congress could not do by an act of its own? It was argued, I recollect, by the Senator from Pennsylvania [Mr. Cowan] some time since that the President had a peculiar gift, or a peculiar right, for doing these things because he was an executive officer. I understood the Senator to say that the President of the United States went into South Carolina and Georgia and deposed Governors and Legislatures, and had the same right to do it that a sheriff would have had, or a marshal. Perhaps he had as much right as a sheriff or a marshal. The Senator's argument put it upon the ground that these men were criminals discharging the functions of these offices down there, and that the President instead of arresting them as criminals just deposed them. I think the Senator from Pennsylvania or any other lawyer can understand the vast difference between the two acts. But I think the Senator from Pennsylvania will agree that neither of these two acts could be done by the President, or be done by a sheriff or a marshal, simply because he chose to do it. The mere fact that a man is a criminal, or is deemed to be a criminal, gives no authority to a sheriff or a marshal to interfere with him. Before the sheriff or the marshal is allowed to put his hand upon him and restrain him of his liberty, he must have the authority of the State or of the United States for doing it; he must have a writ, a precept, a written command in his possession issued by the supreme authority, directing him to do that very thing. It must be addressed to him, and must command him to do that very act, otherwise he cannot wake the arrest. No marshal of the United States had any right to interfere with the Governor of South Carolina or with any member of her Legislature, simply because they had been traitors; but when a court of the United States, leaving jurisdiction of that offense, saw fit to issue a warrant, addressed to the marshal, directing him to make that arrest, then he could do it; not until then. The President could not do it at all. The President could not do it, if he had a trunk full of warrants. He cannot serve a writ. In order to serve writs he must be authorized by law to serve them. His duties are very different from those of a marshal. And when the writ is issued it must be served by the officer to whom it is issued and by nobody else. But there is this great difference between what the President did and what the Senator from Pennsylvania supposes he did. What the Senator from Pennsylvania supposes he did was simply to restrain the Governors of

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these States and the other officers of their liberty. That was not all. That was but a small part. He restrained the whole people of the "State," as they call it, of their liberty. They had under their laws, and it is contended here they had under the Constitution of the United States, the right to elect those men and to have their services. It was interfering less with the liberty of the individuals who were removed from office than the liberty of the people themselves. They chose to have those officers to serve them. The President said they should not have them. Thus it was that, without writ, without warrant, as I think, without authority of law, certainly without process in his hands, by a single clause of a proclamation, he not only arrested, that is to say took possession of, took into custody, according to the theory of the Senator from Pennsylvania, every officer in each one of eleven States, but he actually took into custody the whole people of the State. That was a pretty sweeping arrest, not often equaled! No, Mr. President, the only authority in the world for doing these things is the fact that the people of those States had themselves destroyed the only kind of government which the Constitution of the United States will tolerate. What was in the place of those governments was an illegal, unconstitutional, criminal existence, and the President treated that criminal organization just as a sheriff or anybody else would treat any other person or any other party engaged upon a criminal enterprise. The law commands you not to interfere with the liberty of a citizen except you have due process of law for doing it. Still, if you are going along Pennsylvania avenue and see a store about to be entered by a burglar, in spite of the Constitution, in spite of the laws, you would not hesitate to take him by the collar, if you felt strong enough, and stop the commission of that crime. And so the President found a band of criminals before him. He brushed them out of the way. But if they were lawful tribunals of legal States, then instead of doing a good deed, as I insist he did, he committed a great wrong. But it has sometimes been said that he could be justified in doing these things because he was Commander-inChief of the Army and the Navy, and that he did them in the exercise of what are called the war powers of the Government. Without stopping to consider whether more of the war powers of the Government is vested in the President than in the Congress of the United States, I want to say that the proof seems conclusive that he did not assume to act in virtue of any such power whatever. War had ended when he deposed these Governors and Legislatures. War had ended when the new Governors and new Legislatures were elected. War had ended when Judge Semmes was deposed; when Mayor Monroe was deposed. But if I am mistaken on that point, if war had not ended then, it did end subsequently. I can prove that. I can bring proof that the President and his friends will not contradict, that it ended in all the States but Texas. I find it certified in a proclamation, "Done at the city of Washington the 2d day of April, in the year of our Lord, 1866, and of the independence of the United States of America the ninetieth" — signed Andrew Johnson, and attested by William H. Seward, Secretary of State. That proclamation is introduced to the world by a series of whereases, occupying a whole column and more of this daily paper — the twelve tribes of whereases, starting, I believe, away back in 1861, five years of whereases. One would think a pretty important proclamation ought to succeed such a formidable preamble as that. Let us read the proclamation "Now, therefore" Because of all these things which have occupied a column and a half, or less "Now, therefore, I, Andrew Johnson, President of the United States, do hereby proclaim and declare that the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida is at an end, and is henceforth to be so regarded." The insurrection is at an end, says the President; let the world henceforth so regard it. Well, what does that do? The insurrection being at an end, how is the face of things changed by that? Now will these States have the services of their officers? Now will they be remitted to the rights and prerogatives of States? Now will their elections be respected, their laws have full force, run, and be glorified? Something important everybody thought was going to happen after such a proclamation as that was issued. It seems that an agent of the Freedmen's Bureau down in Georgia thought some great change must have been wrought by this proclamation in the face of political affairs, and he inquired what it meant. His inquiry was referred to the Department of War. He received this answer to it on the 9th of April: WAR DEPARTMENT, WASHINGTON, April 9,1866. Sir: The assistant commissioner of the Bureau of Refugees, Freedmen, &c., for the State of Georgia having inquired whether the President's proclamation removes martial law, and stated that the department commander does not feel authorized to arrest parties who have committed outrages on freed

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people or Union refugees, the Secretary of War, with the approval of the President, directs me to inform you that the President's proclamation does not remove martial law, or operate in any way upon the Freedmen's Bureau in the exercise of its legitimate jurisdiction. It is not expedient, however, to resort to military tribunals in any case where justice can be attained, through the medium of civil authority. E. D. TOWNSEND, Assistant Adjutant General. Brevet Major General J. M. BRANNAN, Augusta, Georgia. The insurrection is suppressed; peace has come; martial law, however, does not end in those communities; nothing is changed by it; their rights are just what they were before, and the authority of the Government is just as absolute, as it had been before; nay, this Judge Semmes was deposed after this proclamation issued, after the insurrection was suppressed, and was so declared by the President. Would the President of the United States undertake to say that martial law existed or could exist in any State of the United States now, subsequent to his proclamation? The Constitution declares that "the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." Would the President venture to say he had suspended the writ of habeas corpus when he had declared there was no longer any rebellion? I think not. He continues martial law there, because it is the only law that is reliable. He has nothing else, he has no act of Congress, and he cannot trust to the laws of those communities. He is perfectly right, in my judgment, in not trusting to those laws. But I think it would be a great deal better for him, a great deal better for those communities, a great deal better for the country if he would recommend to Congress here the passage of such laws as are suited to their condition. Sir, let me call your attention to one little fact (I will not read the papers) illustrative of the great embarrassment attending this mode of governing great communities. The Legislature of the new State of Florida, I learn, enacted a law establishing a county criminal court, the principal business of which I judge to be to discipline the colored population of that State — the freed people. That statute declares a great many different offenses, prescribes penalties for them; whipping is one of the penalties; the pillory is another of the penalties. The commissioner of freedmen's affairs thought that whippings and pillories were not suitable penalties to be imposed on human beings. Accordingly he declared that such punishments should not be imposed on the freedmen who were subject to his jurisdiction. He appealed to the officer in command of the department of Florida, General Foster, I think. General Foster issued an order from his headquarters directing that whenever a county court sentenced a negro to be whipped or to stand in the pillory he should be turned over to his headquarters, not be whipped, not to stand in the pillory, but when turned over to his headquarters he should be set to work at the ball and chain so long a time for each blow to be inflicted, so long a time for each hour he was to stand in the pillory. That order was received by the Governor, and he issued, I believe, an order in conformity to that requiring all persons sentenced to stand in the pillory or to be whipped to be turned over to his headquarters. Now, Mr. President, just look for a moment at the condition of a man sentenced to be whipped or to stand in the pillory in Florida. The judgment is not executed; but neither is it reversed. The defendant is sent to the headquarters of General Foster. Another punishment which is provided for in no judgment in the world is inflicted upon him. The judgment in the county court stands unreversed. After he has got through with his service at the ball and chain, and has left General Foster's headquarters, there is the judgment of the county criminal court to be executed. The only aid, as I see, that the negro is likely to get from this intervention of the officer in command is that the punishment of whipping or standing in the pillory is simply postponed, and in the end be receives a double punishment instead of a single punishment. If a provisional government was established for Florida by act of Congress, none of these things could happen. When Florida enacted a law which outraged the sense of public justice, Congress would do what it does with every other Territory enacting such a law; the law would be set aside, and then there would be no judgments under it. But here, under this mode of administering government, the law is allowed to stand; the tribunals of justice act upon it, try cases, pronounce judgment, and the judgment is not allowed to be enforced, at least until another penalty deemed satisfactory to the officer in command is inflicted. Sir, I do sincerely think I am abundantly justified in making the proposition with which I set out, that if the power which I claimed in January last for Congress to provide provisional governments for those communities is not furnished by the Constitution,

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the President is more defenseless than any man who has ever undertaken to administer government for the United States. If that authority does not exist, how these acts are to be defended it is impossible for me to conceive. But, Mr. President, it is urged that however the plan or the policy of the President may accord with the Constitution, it does accord exactly with the policy of his predecessor in office. That is a point which my colleague has urged repeatedly with great force and with great earnestness. I desire to say now that there is no more similitude between the policy of President Johnson and the policy of President Lincoln than there is between a blister of Spanish flies and a poultice of cabbage leaves. [Laughter.] What was the policy of President Lincoln, which this plan is said to resemble? Recollect, sir, when Mr. Lincoln issued his proclamation of the 8th of December, 1863, we were at war, and this proclamation of his was issued, not in the interest of our enemies in that war, but to injure our enemies and in the interest of our friends. Therefore it was that he proclaimed this: "And I do further proclaim, declare and make known, that whenever, in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such State at the presidential election of the year of our Lord 1860, each having taken the oath aforesaid, and not having since violated it, and being a qualified voter by the election law of the State existing immediately before the so-called act of secession, and excluding all others, shall reestablish a State government which shall be republican, and in no wise contravening said oath such shall be recognized as the true government of the State, and the State shall receive thereunder the benefits of the constitutional provision which declares that the United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion: and on application of the Legislature,or the Executive, (when the Legislature cannot be convened,) against domes-tic violence.' " That is what he said. There was in that proclamation the exercise of the same identical power which President Johnson exercised in 1865, and the exercise which I insisted ought to be exercised in January last by Congress; that is to say, the power to take the prerogatives of a State from the whole people of a State, and to do something else with them. President Lincoln proposed to take them from the whole body of the people and give them to a minority of the people, not less than one tenth. President Johnson, in 1865, took them from the whole body of the people, and gave them to a single individual. I proposed to take them from the whole body of the people in the State and give them to the people of the United States. That is the difference between the three propositions. Look at the practical operation, however, of the two plans. President Lincoln's proclamation says to these people down there, "So many of you as will, now while the war is raging, turn your backs on the rebellion, become our friends, take an oath to stand by us, and to fight our enemies, we will take by the hand; we will organize you into a State; we will build up the boundary line of a State, as a wall between you and the rebels; we will exclude them from all power, and vest all power in you." That was President Lincoln's plan. He proposed to wrest the prerogatives of the State from the majority and to bestow them as a reward upon the minority who should then, when the rebellion was at the height of its power, desert it, defy it, and take an oath to resist it. President Johnson's plan was promulgated only after the power of the rebellion was utterly broken. When majorities and minorities were alike ready to swear fealty to the United States because they could not longer resist its power, then the President tendered pardon and the prerogatives of the State to that very majority which had resisted while resistance was possible, and to whom the law secured nothing but the extreme penalty due to treason. President Lincoln held up the prerogatives of the State as a reward to those who should desert the rebellion and help subdue it, while President Johnson, after the rebellion is subdued by the boundless expenditure of blood and treasure, flings those same priceless prerogatives to his prisoners of war. But there was another difference between the policy of President Lincoln and the policy of President Johnson. President Lincoln says: "This proclamation is intended to present the people of the States wherein the national authority has been suspended and loyal State governments have been subverted a mode in and by which the national authority and loyal State governments may be reestablished within said States, or in any of them; and while the mode presented is the best the Executive can suggest with his present impressions, it must not be understood that no other possible mode would be acceptable." President Lincoln offers the best plan he can think of, but advertises that he is ready to accept a better one if others can devise it. President Johnson offers a plan immeasurably worse, and allows men to whose unbought efforts he is indebted for the power he wields to be proscribed for no offense but believing that a better plan can be devised.

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Mr. President, here seems to be the issue: we invite the people of the United States to incorporate these just and necessary amendments into their Constitution; and we propose to sequestrate the claim to representation in Congress until these amendments be agreed to. The opponents of these amendments invite the people of the States now represented to send Representatives here who will open these doors to the representatives of these rebellious communities at once, and whether the pending amendments be agreed to or not. That is the issue. I do not know what the decision is to be. I hear it said in the newspapers and elsewhere that a Congress is coming here that will open these doors. Perhaps so, I see most elaborate efforts being made to bring such a Congress here. With what success it is to be attended I do not know. That remains to be seen. I see a great many individuals and a great many representatives sent here by the Union party to uphold the Union cause now aiding to their utmost in all that is thought to be required, to secure such a Congress. Mr. WILSON. There are not a great many of them. Mr. HOWE. No, I do not mean to say there are a great many of these representatives. There are a few of them aiding in that work. I am told that the design is to pack the Congress of the United States, to select men and to secure the election of men devoted to the single purpose of getting representatives in here from these lately rebellious States. Mr. President, there was an attempt about two hundred years ago to pack a Parliament in England, and it would be well enough perhaps for those engaged in this enterprise to recur to the history of that. It is said, indeed, that those who are engaged in this enterprise have the President with them and have the patronage of the Government on their side; that that is all-potential; that the country and the public conscience cannot stand up against it. They may be right who put that estimate upon the influence of patronage. But recollect we do not know that this patronage is to be in the hands of the present Executive for more than about two years. When, two hundred years ago, they undertook to pack a Parliament in England, this patronage was all in the hands of a king for life and his heirs after him. Mr. COWAN. What Parliament was that? Mr. HOWE. The Parliament of James II. The question there was whether the Catholics should be admitted to a share in the Government. The question here is, whether the rebels shall be admitted to a share in the Government. I do not know whether the hostility of the nation to the rebels is as strong as the hostility of the English nation was to the Catholics or not. I am inclined to think it is. That was the question in that case. I have stated the question in this. Macaulay says: "The sanction of a Parliament was necessary to his system." And I judge the President thinks that the sanction of a Congress would be convenient to his. "The sanction of a free and lawful Parliament it was evidently impossible to obtain; but it might not be altogether impossible to bring together by corruption, by intimidation, by violent exertions of perogative by fraudulent distortions of law, an assembly which might call itself a Parliament, and might be willing to register any edict of the sovereign. Returning-officers must be appointed who would avail themselves of the slightest pretense to declare the King's friends duly elected. Every placeman, from the highest to the lowest, must be made to understand that if he wished to retain his office he must, at this conjuncture, support the throne by his vote and interest. The High Commission, meanwhile, would keep its eye on the clergy. The boroughs, which had just been remodeled to serve one turn, might be remodeled again to serve another. By such means the King hoped to obtain a majority in the House of Commons. The upper House would then be at his mercy. He had undoubtedly by law the power of creating peers without limit, and this power he was fully determined to use." * * * 'But there was no extremity to which he was not prepared to go in case of necessity. When in a large company an opinion was expressed that the peers would prove in tractable"— As it is sometimes suggested the Senate may— "'Oh, silly,' cried Sunderland, turning to Churchill, 'your troop of guards shall be called up to the House of Lords.'" And I think I have heard such intimations thrown out about the treatment to be bestowed upon the Senate. "Having determined to pack a Parliament, James set himself energetically and methodically to the work. A proclamation appeared in the Gazette, announcing"— A change of the postmasters, collectors of revenue, assessors, and district attorneys, substantially. "A proclamation appeared in the Gazette, announcing that the King had determined to revise the commissions of peace and of lieutenancy, and to retrain in public employment only such gentlemen as should be disposed to support his policy."

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If they wanted to eat the King's bread and butter they must support the King's policy. "A committee of seven Privy Councilors sate at Whitehall for the purpose of regulating — such was the phrase — the municipal corporations." I do not know exactly how many members compose the Johnson club, which is, I believe, nothing essentially different from a committee of Privy Councilors. "In this committee Jeffreys alone represented the Protestant interest. Powis alone represented the moderate Roman Catholics. All the other members belonged to the Jesuitical faction. Among them was Petre, who had just been sworn of the council. Till he took his seat at the board, his elevation had been kept a profound secret from everybody but Sunderland," &c. Macaulay goes on at length to describe the efforts which were made to pack the Parliament; but after all they did not succeed. It seems wonderful that they did not. The King had absolutely unlimited control of all patronage, all appointments. Parliament did not dispute that with him. Congress does not yet agree that that power is in the hands of the President. But whatever power the King had he had for life. It is not certain that the President has the power vested in him today for life. Mr. President, how were these efforts received by the people of England? The historian says that Aubrey de Vere, Earl of Oxford, the noblest subject of England, when called upon to acquiesce in the policy of the King, answered : "Sir, I will stand by your Majesty against all enemies to the last drop of my blood. But this is matter of conscience, and I cannot comply." He was at once removed from his lieutenancy. A similar demand was made upon the Earl of Shrewsbury, and a similar reply given, and similar treatment was administered; upon the Earl of Essex with like results, and upon a great number of the most distinguished nobility of England; and one after another they went their way, as our postmasters, collectors, and assessors are going now in these days. Mr. President, history has taken note and has preserved down to this day the names, the fames, and cherishes yet the memory of those men who would rather be right than to be lieutenants of counties: and history for a great many years to come will cherish the name and the memory of those men who in these days dare to be right rather than be postmasters or collectors. Among the expedients resorted to for the purpose of securing the election of the right sort of representatives was this: "'The catechism by which the lords lieutenant had been directed to test the sentiments of the country gentlemen consisted of three questions. Every magistrate and deputy lieutenant was to be asked, first,whether, if he should be chosen to serve in Parliament, he would vote for a bill framed on the principles of the Declaration of Indulgence; secondly, whether, as an elector, he would support candidates who would engage to vote for such a bill; and thirdly, whether, in his private capacity, he would aid the King's benevolent designs by living in friendship with people of all religious persuasions." A pretty close catechism there. Mr. COWAN. There is not much objection to that these days — toleration and indulgence. Mr. HOWE. No, there does not seem to be. I believe the catechism has been greatly improved since that period. "As soon as the questions got abroad, a form of answer, drawn up with admirable skill, was circulated all over the kingdom, and was generally adopted. It was to the following effect: `As a member of the House of Commons, should I have the honor of a seat there. I shall think it my duty carefully to weigh such reasons as may be adduced in debate for and against a bill of indulgence, and then to vote according to my conscientious conviction. As an elector, I shall give my support to candidates whose notions of the duty of a representative agree with my own. As a private man, it is my wish to live in peace and charity with everybody.' " A very good form of an answer. Whether it was referred to to [sic] any extent by those distinguished Cabinet officers who were visited by a serenading party the other night, and catechized in much the same way, and whether any of their responses were framed upon this precedent or not, I do not know. This was in 1687. In 1688 the dismissed lieutenants of counties were restored to favor and to place. The committee of Privy Councilors were dismissed from Whitehall and disgraced, and the King himself was a fugitive from his realm, and no man has since occupied his throne who supported his policy. Sir, history is useless if it do not guide and animate us in the discharge of our duties. Mr. President, some things have been said, and some incidents have transpired, since this debate commenced in January last which I propose to notice, although they are not very material to the debate itself. We seem to have parted company here. Gentlemen who met in this Congress at the beginning of the session representing the same

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party, upholding the same cause, commissioned to the same work, seem no longer to work together; and it has happened unfortunately, very unfortunately for the cause, very unfortunately for me, very unfortunately for the State that I have the honor in part to represent, that my colleague and myself seem to have parted company in this time. My colleague some time since thought he had occasion to admonish me that the present President of the United States was not elected by the Whig party. I believe he was entirely correct in that statement. I really never had said or supposed that he was elected by the Whig party, and I did not quite understand at the time, and I do not quite understand now, what the necessity was for reminding me of so obvious a truth as that. It is true I did once belong to the Whig party. If, according to my colleagues's understanding of the gospel plan, that is the one unpardonable sin; if that is that blasphemy against the Holy Ghost which never can be forgiven in this world or in the world to come, I must submit to the consequences. I really was very honest and sincere, however, when I belonged to the Whig party. I really did think the Whig party tried to serve the country according to the best of its light and judgment; and I thought its light and its judgment were about as good as there were going. I think so still. I continued to serve it up to the time when in 1854 that party made its last struggle to defeat the repeal of the Missouri compromise; and when I found it, by reason of the defection of its southern members almost in a body, entirely unable to do anything to resist the tide of slavery aggressions, then, sir, I abandoned the Whig party and I united myself with the only party which seemed to me to promise some hope of effecting such a resistance. That is the extent of my guilt in that behalf. My colleague took occasion to say in substance that he cared nothing for parties only as means to ends, but when we came down to principles we would find him there every time. If he had said that simply by way of paying tribute to his own steadfastness and stability I should not have felt called upon to dissent; but when he parades it rather as a reproach to those who no longer act with him than as a commendation of himself, it seems to me to demand some notice. I certainly do not stand here to deny that he is always true to principle; but I stand here to say that I do not think he is the only one who is always true to principle; and I must be allowed to add that, true as he is to principle, he is not understood to have been always true to the same principles. I have understood that in 1848 my colleague was a member of a convention which assembled at Buffalo, in the State of New York — a convention of what was called the Free Democratic party. That convention adopted what they called a platform. In that platform I find this resolution, the closing one: "Resolved, That we inscribe on our banners, 'Free soil, free speech, free labor, and free men,' and under it we will fight on and fight ever, until a triumphant victory shall reward our exertions." I do not know that my colleague was a member of that convention. I have been told so. If he was there and subscribed to this resolution, I have no doubt it truly reflected his convictions at that time, and that he was then true to that principle. But my colleague will hardly insist that he was true to the same principle in 1852, four years later, when in Racine he was opposing the candidate of the same party whose representative he was at Buffalo, and where he is said to have exerted himself to prove that slavery was of divine ordination, and to prove it from the Scriptures. Mr. DOOLITTLE. It is false that I ever said that anywhere. It is true that in 1852 I supported General Pierce and my colleague supported General Scott; but they stood precisely on the same platform, as far as slavery was concerned. Mr. HOWE. If it is false that my colleague ever made any such defense of slavery, I am very glad to hear it, and I am very glad that I have furnished him the opportunity to say so. Mr. DOOLITTLE. In relation to that, I do not know where my colleague obtains any information bearing on this subject, but it is utterly false. For twenty-five years I have spoken on the subject publicly, in the State of New York and in all the States, and I have always maintained, in every form in which language could be used, that slavery was wrong. The idea that I ever defended it as a divine institution is utterly false. Mr. HOWE. I am very glad to be corrected. I did not make myself responsible for the statement. I introduced it here in his hearing that he might contradict it if it were not true. I have heard it repeatedly said within the State of Wisconsin; I am surprised it should have come to my colleague's ears now for the first time. If I am mistaken about it, as I must think I am, I am glad to be so told. But if he did not advocate slavery then and there in his speech, he defended and upheld a party which did uphold slavery, and he did not adhere to the Free Democratic party which he did uphold in 1848. Mr. DOOLITTLE. I have stated to my colleague that in 1852 I supported the election of General Pierce; and upon the slavery question his platform was precisely the same as the platform of the Whig party, whom my colleague supported in Wisconsin. So we stood on the same platform as to that. It was averred in the platform of

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both parties that the slavery question was ended, and nothing should be said about it, pro or con, in Congress or out of Congress. But in 1854, when the Democratic party which elected Pierce, violated its pledges, renewed the slavery agitation, put in the knife, repealing the Missouri compromise, I from that moment denounced it as the dissolution of the Democratic party, and I gave what little power I had to help to overthrow it and trample it under my feet, because it was false to the pledges upon which it was elected; and in 1856, as a matter of course, we carried Wisconsin for Fremont, and against the extension of slavery into the Territories. My course, therefore, has been entirely consistent on the slavery question ever since 1817, when in the convention of the Democratic party of the State of New York, I myself introduced the corner-stone resolution upon which the Free-soil party of New York was organized, before the Buffalo convention. The Buffalo convention followed all that. It was the incident to it. It came in, and renominated Mr. Van Buren, who had already been nominated in the State of New York by the Free-soil Democracy, as they were called — the Barnburners, in the language of the day, by way of epithet. Those are the facts. Mr. HOWE. I was not arraigning my colleague because he did not support General Scott in 1852. There was nothing in his previous history that I know of that seemed to make such action on his part called for. I thought it peculiar that he did not support the candidate of the same party whose candidates he supported in 1848. It was not because he did not support the Whig party, but that he did not stand by the Free Democratic party which in 1848 he had pledged himself to stand by forever. I simply say that although there might have been some similarity — and I do not concede that — between the attitude of the Democratic party and the Whig party in 1852, there was not that marked similitude between the attitude of the free Democratic party in 1848 and the Democratic party in 1852. I am not accusing him of any want of sincerity. I am bound to suppose that he was just as sincere in his devotion to the Democratic party in 1852 as in his devotion to the free Democratic party in 1848; but there, I do insist, is the proof that he was not adhering to the same principles in 1852 that he was in 1848. But, Mr. President, it is true, as my colleague has said, that the Democratic party did not keep the pledges they made in 1852; that in spite of their promise made there to have no more agitation upon the question of slavery, they did introduce it again two years later, and they did repeal the Missouri compromise. My colleague says now that from that moment the Democratic party was dissolved. He will not undertake to say that his connection with the Democratic party was dissolved from that moment. I never heard of his dissolving his connection with the Democratic party until 1856, some two years after the Missouri compromise was repealed. Mr. DOOLITTLE. Upon that subject, if my colleague will allow me to call it to his recollection, he will remember at once that I went on the bench as judge of the first judicial circuit of Wisconsin in 1853, and from 1853 to 1856 was judge of the first judicial circuit, and of course while upon the bench I did not take part in political affairs. After I had resigned from the bench then I felt at liberty to take part in them. Mr. HOWE. It is true my colleague was upon the bench, but I believe he recollects perfectly well that his political affiliations were known all that time. I think I cannot be mistaken in my recollection that his first declaration in behalf of the Republican party, which was formed in 1854 if I remember aright, was after Congress adjourned in August, 1856, and then a letter from him was published which was the first that was known to the people of Wisconsin that he adhered to the platform and policy of the Republican party. Mr. DOOLITTLE. It is true, as my colleague states, that the first public declaration which I made was upon the adjournment of Congress in 1856, where the point decided was that Congress would enforce the borderruffian slave code in Kansas. The outrage was such that I could not, for one, endure it, and I publicly denounced it, and from that moment threw all the influence that I possessed against the party which had sustained that course and determined to enforce, as the laws of the Territory of Kansas, that border-ruffian code. Mr. HOWE. I believe my colleague is entirely correct. He did not leave the Democratic party because of the repeal of the Missouri compromise, nor because of their enactment of the fugitive slave law. He adhered to it in spite of both those acts. But in 1856, two years after the Missouri compromise had been repealed, after Congress had adjourned, he then joined the Republican party; and then I believe he is entirely correct in saying that he gave as his reason, not that he objected to these measures, but that the principle of squatter sovereignty, or popular sovereignty, so called, had not been observed in Kansas. Mr. DOOLITTLE. My colleague will do me the justice to understand certainly that while upon the bench I did not write any public letters or make any public speeches, but I did in conversation privately express my most declared opinions on that subject to all persons who conversed with me upon it. As far as I was at liberty to make declarations, being upon the bench, I did so; but I did not make any public declaration by letter or speech; that is all. I denounced the repeal of the Missouri compromise from the moment it was proposed. Mr. HOWE. That was not all. The point is, that when he did make a public declaration of his adhesion to the

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Republican party, it was not placed upon the ground that they had passed an obnoxious law in 1850 or another in 1854, but that the principle of popular sovereignty, which was pledged to the people of Kansas in 1854, had been violated, and they had not had the benefit of it. That was the ground upon which he, as I understand it, left the Democratic party in 1856 and joined the Republican party. But I am not disputing that he was just as sincere to his convictions in 1856 as he was in 1852 or in 1848, and I am not disputing that he is just as sincere in his convictions today, when he is leaving the Republican household, when he has left the Republican faith, as he was in 1856 when he embraced it. Mr. DOOLITTLE. I will say to my colleague that I have not left it and do not expect to leave it. I do not mean either to be seduced from it or driven from it. Mr. HOWL. Mr. President— The PRESIDING OFFICER, (Mr. Pomeroy in the chair.) It becomes the duty of the Chair to remind Senators that the question under discussion is the amendment to the Constitution of the United States. Mr. JOHNSON. I was about to ask what the question before the Senate was. The PRESIDING OFFICER. The constitutional amendment has been under discussion for some time, and it is hoped that Senators will confine their remarks, as near as they are able to do so, to the question under discussion. Mr. HOWE. Yes, sir; and I propose to confine my remarks as nearly to that question as I am able to do, but under these extraordinary circumstances I was not able to confine my remarks any nearer to that question than I have so far. Finding myself arraigned here as for a crime, that I had once affiliated with the Whig party, I thought it right to consider very briefly the party relations of my colleague heretofore. My colleague says now that he has not left the Republican party. I am very glad to hear that, if he really means to be understood by that that hereafter he will adhere to that party and to its principles and to its candidates and to its organization. But I understood him to say the other day that he had got on to a platform of his own and he did not propose to leave that, although the Union party did leave it, and he did not propose to leave that, although any other party got on to it. Mr. DOOLITTLE. Mr. President— The PRESIDING OFFICER. Does the Senator from Wisconsin yield to his colleague? Mr. HOWE. I cannot refuse to yield for explanations. Mr. DOOLITTLE. As this is a matter personal to myself; I hope my colleague will allow me to say a word. I say I have not left the Republican party which is that party which stands upon the platform on which we elected the President and Vice President of the United States in 1864. I stand on that platform and by its principles, and do not intend to leave them. I do not intend to be driven off from them, nor to follow anybody else off who may choose to go off from them on to a new platform; nor will I abandon the platform whoever else may come on to it. I mean to be governed by the principle which I avowed the other day, and which I expect to control my action. I will not interrupt my colleague in his speech further. Mr. HOWE. Mr. President, it is very evident I did not misunderstand my colleague's position. He repeats almost the same words I put into his mouth as having been used the other day. The fact is that he has divided from the Union party. Whether the Union party has left the true platform, or he has, is the point in dispute between him and the party. I shall not stop here to discuss that question at length, nor to ask the Senate to settle it. They are apart, and another party is now standing on the platform that he occupies. He calls it his. He means nothing more than that he and the Democratic party occupy the same platform. Whether it is his or theirs in point of fact, I take it, will be settled when they get into convention together. The question of title will be settled then. If it shall be found to be his property I shall not dispute it with him. If they acquiesce in that title, it will be entirely satisfactory to me. I apprehend, however, that there will be some dispute about the right to it. I have said that I did not mean to raise any question here upon the sincerity of my colleague's convictions; but I cannot help noting the fact that in 1848 when he was acting with the Free Democratic party, the Free Democratic party of New York was much the strongest portion of the Democratic party; it was, numerically, much stronger than the Democratic party of that State; and in 1852 when he left the Free Democratic party and acted with the Democratic party of Wisconsin, the Democratic party was the majority in that State, and the Free Democratic party only numbered about eight thousand of the popular vote. I have shown that my colleague did not leave the Democratic party and join the Republican party in 1854, but only in 1856, and then Wisconsin was no longer a Democratic State. Wisconsin elected a Republican Governor in 1855, and in about sixty days after my colleague published that letter, Wisconsin gave a majority of somewhere from fifteen to twenty thousand for the Republican candidates for President and Vice President. The Republican party was unmistakably in the majority; and in about four months from the time my colleague joined the Republican party, so grateful were they for his services, which

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were very distinguished and very able, that they made him their representative in this Chamber. Since that time he has served the party and served the cause and served the country, and served it with distinguished ability. It is because of those recollections that that State especially and that I myself regret to see the attitude that he maintains today toward that party which welcomed him so cordially and has trusted him so long; for if he has not left it, he knows very well that he is proscribing it, turning from office, or helping to turn from office, as true and faithful men as were ever in that or any other party, and men who have done as much hard work in his support as any men have ever done. I do not know whether that party is in the majority in the State of Wisconsin or not; but the President certainly does not acquiesce in that view of public affairs which is most grateful and most acceptable to the Union party of Wisconsin. The President has this patronage in his power. It is said that he resigns it to those who maintain his policy. It is certain that my colleague has great influence in the disposition of it, at least in that State. Raising no sort of question upon the sincerity of his convictions, I must be allowed to say that he has been a most fortunate politician, always to happen to have just those convictions which bore the highest price in the market. Mr. DOOLITTLE. Mr. President— The PRESIDING OFFICER. Does the Senator from Wisconsin yield to his colleague? Mr, HOWE. No, not now. I take it there is no explanation to be made on that point. Mr. DOOLITTLE. The last remark of my colleague seems to me to call for an answer. Mr. HOWE. I shall be through in a moment. The PRESIDING OFFICER. The Senator from Wisconsin declines to yield the floor. Mr. HOWE. Mr. President, one other remark has been made in the course of this debate to which I wish to allude. It was made by the Senator from Indiana [Mr. Hendricks] a day or two ago. He accuses the Union party of laboring here for party purposes and party ends. I think that remark most unjust. If we were actuated by the selfish purpose of building up the Union party and strengthening it, does he suppose, does any man of sense suppose, that we would take under our care that poor and helpless and hopeless race known as Union refugees and the colored freedmen in those States? If we were making combinations for party interests, and not for the good of the country, does the Senator from Indiana suppose we do not know enough to affiliate with the powerful and educated and influential class in those States rather than with this weak and helpless one? Do not we understand the value of such combinations just as well as he does, and would not they be as willing to combine with us as with them? What is there to secure that affiliation between them? Is it inevitable? What have they done? Is it not as desirable to those men who are seeking their way back into the Union to affiliate with those who have power as with those who have none? This Union party — I do not mean we who represent it here, but the Union party of the country — have whipped the rebellion; and the opposition to that Union party has done nothing but "the heavy standing round." They have not helped to uphold the rebellion any further than words would go, and they certainly have not helped to subdue the rebellion, even so far as that. Looking at it as a practical man, I think those gentlemen who are seeking to come back here would rather affiliate with those who represent the Union party, which can do something, than those who represent the Democratic party, and can do nothing as they have done nothing. And certainly if we were looking to our own party interests rather than to the interests of the country, it seems to me that that is the crowd we should most naturally affiliate with. I think it is unjust in the Senator from Indiana to taunt us, us of all the people in the world, with seeking party ends and party interests in the efforts that we have been making on this floor. For myself, I disclaim every such purpose as that. For myself, I avow here, as I have avowed everywhere, that everything I have asked to have done in the name of the nation, South or North, in reference to closing up this war, I have asked to have done not only because I believed the best interests of the poor and the helpless demanded it, but because I believed the best interests of the rich and the powerful demanded it there and here. There is but one measure which meets every want in the nation, and that is justice; justice from the Government to the people; justice between man and man. I believe we are trying to administer justice between man and man, and justice between the Government and the people.

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Reconstruction. —————————

SPEECH OF HON. GARRETT DAVIS,
of KENTUCKY,

IN THE UNITED STATES SENATE, June 7, 1866. The Senate having under consideration the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States— Mr. DAVIS said: Mr. PRESIDENT: We have been admonished by some of the leading members of the majority in the Senate, that Congress is now about entering upon the seventh month of its session, and that the public business was never so far behind at so late a period at any previous session of Congress as it now is. I think, that the honorable Senators who give this admonition and their friends, are alone responsible for the great backwardness of both Houses in the transaction of the public business. I admit that there is a very great state of backwardness in relation to the transaction of the legitimate, proper, and useful portion of the public business; but as to the business that is of an illegitimate and mischievous character, and that is calculated to produce results deleterious to the present and the future of the whole country, there has been a good deal, much too much, of progress made. This tardiness in the transaction of the important, useful,and appropriate business of the country has resulted from a fixed and determined purpose, manifested in various propositions. of the majority of Congress to elevate what are denominated the freedmen, to aggrandize them, to make an unparalleled provision in its extent and expensiveness for the maintenance of the young, the aged, the infirm, and the helpless, and the religious and intellectual education of them all; and to force, if possible, upon Congress and the country the dogma of negro suffrage. Another cause of the consumption of time is the general disposition of the majority to tinker with the Constitution, their numerous propositions to amend it, and the discussion of them in both Houses. And still another fruitful cause of much waste of time has been the war that is prevailing between that majority in both Houses and the Executive, not upon his part as I conceive, but by that majority upon him. I was never of the politics of the President, nor he of mine; but at the present time and for some time past his leading measures have received my approval and my hearty support. I think, notwithstanding the number of protests to the contrary in this Chamber, that his policy, as it is termed, is but a continuation of the later policy of the late President, but a continuation of the policy and principles to which the majority of both Houses of Congress stand pledged in the most solemn forms. We now see, though, that this majority, lately the friends of the President, are engaged in a war upon him, and that war manifests itself in various aspects and modes. They denounce him; they denounce his measures, his policy. He is a coordinate branch of the Government; or at least the executive department is, and he is the chief executive officer. He is as independent in his constitutional position in the Government, and in the legitimate exercise of the powers and functions of his office as is Congress in the exercise of its powers and functions, and he ought no more to be assailed by Congress, or to be obstructed in the legitimate exercise of those powers, than Congress should be in the exercise of its powers by him. Among his powers is the veto. We have seen repeated and persevering efforts made by Congress, with a considerable amount of success, to checkmate the veto power of the President by their achieving, as I think, illegitimately and unconstitutionally, a majority of two thirds, and over two thirds, in both Houses. And one of the objects of the majority in presenting the extraordinary proposition under consideration is to attain and continue a political power that will enable it and its sectional successors to control the future legislation of Congress; to overrule presidential vetoes; to hold possession of and direct all the operations of the Government. But what is the immediate cause that has brought down the majority in such relentless hostility to the President? Let us examine for the object and the animus. Under the late Administration the President and Congress were in accord; that is, the good man who then filled the office of President was so flexible in his nature and will that he permitted himself to be driven from his own principles and purposes, often, by the vehemence, energy, and stronger will of the radical leaders in Congress. One of the most celebrated apostles of abolitionism in America, Phillips, remarked on a certain occasion, "Mr. Lincoln is a growing man; and why does he grow? Because we have watered him." And there was a great deal of truth expressed in those few words. The abolitionists in Congress and out of Congress watered the late President. They caused him to grow in the direction and shape that they wished him. They warped him from his own principles and policy to theirs. And what is the great sin of the present Executive of the United States? It is that he will not make himself the leader, the obedient tool of the majorities in

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the two Houses of Congress; that his judgment of his powers, of his duties to the country and to the Government, and of what is constitutional, wise, and good for the country, is inconsistent with and may conflict with their party purposes; and because he will not tamely submit his own reason and the conclusions of his own' judgment and conscience to their behests. To prove that this position of mine has not been taken without facts, I will read extracts from a speech of the honorable Senator from Michigan, [Mr. Howard,] delivered in this Chamber some two weeks or more since. That able Senator referred to the measures of the President for restoring relations between the States lately in rebellion and the United States Government, and characterized them as "his policy." The Senator then proceeded to make these remarks: "I complain of this course of conduct on the part of the Executive, because I believe it to be a usurpation of the authority which pertains not to him but to Congress, and here is the gist of the controversy, here is the bone of contention." Further: "I will say that it is not competent for a military commander in the field, whether he be 'Commanderin-Chief' or acting in any other capacity under the Constitution of the United States, to impart political or legislative rights to the conquered community. That is what I assert. The Commander-in-Chief holds the sword of physical force; all his acts as 'Commander-in-Chief' are connected with the prosecution of the war as such, and go not a single inch beyond the necessities of the war. He has no authority to assume the legislative power that appertains to the Government who appoints him, and whose servant he is, and undertake to exercise legislative authority in the country where he is the conqueror. Let the honorable Senator from Pennsylvania read the numerous cases in Roman and Grecian history, and, indeed, in all other histories, in which attempts have been made on the part of commanders in the field, and he will not find a single instance in which any attempt to exercise legislative authority over a conquered people has been tolerated by the Governmental home." * * * "The mere formal question of the power of each House to decide upon credentials is one which I am not discussing. I go far behind that; I go down to the bottom, to the essence of the question, and deny to the President the power to impart to the people of any rebel State any political rights whatever; and I claim that that power belongs to Congress and to Congress alone." * * * "It is said the States have the right of coming back to Congress. I grant it. They have the right to return to their allegiance and be represented in the two Houses of Congress; but that right does not accrue and cannot accrue until the conqueror, the Congress of the United States, has seen that it is consistent with their interests, with the interests of their people, the interest of the whole people of the United States. We hold them today not by their own will, not by their willing fealty to the Government, not in virtue of their fidelity to the Constitution, but solely, in my judgment, even today, by virtue of this highest law known to communities, physical force." Mr. President, I have read these extracts from the speech of the distinguished Senator from Michigan, who was upon this illegitimate and hybrid committee of fifteen, raised without any proper authority, acting and coming to conclusions and making recommendations without any sanction or authority, and obligatory upon no person; my purpose being to show the animus and the objects which he and the party of which he is such a distinguished member, have in relation to the President and his constitutional powers in the war which they are making upon him. I will read, with the same purpose, a short paragraph extracted from one of the trusted oracles of this party in the Northwest, the Chicago Tribune, in these words: "Mr. Johnson is merely the agent of the Republican party, which is the governing party, or, in other words, the Government. He is in duty and in honor bound to carry out its measures and principles. When he refuses to do so he commits a breach of trust, and stands in the light of a swindler." What is this power called "the Government" by the members of this majority in the Senate during the last Administration? The majority of Congress and the Executive were then in harmony. The Executive was denominated by them "the Government." Gentlemen could hardly rise in their places and utter a sentence upon this floor without referring to the President as "the Government." True loyalty, all loyalty, then consisted in supporting the President—"the Government"—and his measures; and myself and other humble men who had the independence, or the hardihood, to dissent from the measures of "the Government,"—of the President— and to condemn them, were denounced as "copperheads," as "disloyal." You see now, sir, the arrogant, profligate, and monstrous position assumed by this Tribune in Chicago. With him the President is no longer the Government." "The Government" is the majority of Congress, according to its designation. By what authority is the President

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deposed and the majority in the two Houses of Congress installed as "the Government?" In this Chamber no Senator now denominates the President "the Government." Nor do I subscribe to any such absurdity. It is an abuse of terms to call either the Congress or the President the Government. The three departments, the legislative, executive, and judicial, and nothing less, constitute the Government. All the powers of government and of sovereignty trusted to the Government of the United States are divided out by the Constitution among the three departments. These departments are coordinate, and in the exercise of their appropriate constitutional powers they are equally independent; and where one is making encroachments upon another, or upon the Constitution generally, and the liberties of the people, it was the intention of the founders, not that one department should be the Government, but that each should be a check upon the other, and each should defend the Constitution and the liberties of the country from the assaults of the others. Andrew Johnson is the existing impersonation of the chief executive power of the Government of the United States— that power is very limited, to be sure, not extending one particle beyond the powers enumerated in the Constitution, and those with which he is clothed by the laws of Congress within the sphere of its authority so to invest the President with incidental, auxiliary powers as expressed in the Constitution. The powers of the judicial department are enumerated, meted, and bounded out to the Supreme Court and the courts inferior to it, with the same authority of Congress by law to invest it with all proper and necessary incidental powers to execute those expressly delegated to it. Now, Mr. President, I proceed to state what I understand to be a few plain and self-evident truths as connected with the American system of government: 1. The great leading feature of the complex political system of the United States is, that all sovereignty is divided between the State governments and a General Government common to all the States; and that the affairs of the people with foreign nations, and with each other as residents of different States, are confided to the General Government; and those affairs which relate locally to the people of each State, their institutions, and rights of person and property, were reserved to the States respectively, and are exclusively under the jurisdiction of their governments. 2. The Constitution of the United States forms a Government of delegated and limited powers, and that Government, or any of its departments or officers, has not a vestige of power but what is conferred by the language of the Constitution. 3. Military law exists by the legislation of Congress in the form of the Articles of War, and the Rules and Regulations of the Army. What is called martial law is the overthrow of all law and the domination of the arbitrary will of the military commander. This state of things cannot exist in any place in the United States where the civil law can be enforced by the civil courts with the aid and support of the military power. It is only in such localities where the civil law and courts have been in fact deposed by a hostile military force, and this deposition continues by the actual presence and operation of the cause which produced it, that the will of the military commander becomes, of necessity, the law of the place; and only to the limits and so long as the civil law is thus deposed. So soon as the hostile force is withdrawn, or driven away, or conquered by friendly arms, the civil law and courts are reinstated by the principles of the Constitution, and become again de facto as they are all the time de jure the supreme law and authority. Now, Mr. President, these propositions, in their length and breadth, are based upon the Constitution of the United States. They are not original with me. I have learned them. I have learned them from Hamilton and Madison in the Federalist, from the debates in the Convention which framed our Constitution, from the debates of the different State conventions that adopted it, from the decisions of the Supreme Court of the United States, particularly the decisions rendered by Chief Justice Marshall and Justice Story, and from the Commentaries of Chancellor Kent. These great truths or principles are a part of our system of government; they are moored in that Government and will abide there as long as it lasts intact by revolution; and I defy the honorable Senator from Michigan and all of his associates here or elsewhere to shake these principles, incorporated as they are in the Constitution. But, Mr. President, about the year 1860 it became manifest that the American people were fast coming to a civil war. The just authority of the Government of the United States and the execution of its laws, it became apparent, were to be resisted. In the beginning of the year 1861 the banner of revolt, of insurrection, was unfurled. What was the duty of the Government of the United States, of its departments, and of the men who occupied those departments when this demonstration against the laws, authority, and power of the Government was made? They were not to remain torpid, inactive, as stocks and stones. That condition of things had been anticipated by the wise statesmen who framed the Constitution. The Constitution was cradled in a rebellion in the State of Massachusetts

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got up by Shays. It was just for the condition of things that arose in 1861 that the framers of the Constitution had made provision, and they had made it by prescribing the manner in which such resistance to the execution of the laws of the United States or such insurrections were to be met. They had designated the departments of the Government and the officers that were to undertake this great work of putting down such insurrections, and coercing obedience to the Constitution and laws, and with what means. I now propose to examine what each department of the Government was to do in this great work, according to the provisions of the Constitution and laws made in pursuance of it. The Constitution reads thus, in various sections and paragraphs: "The Congress shall have power— "To raise and support armies;" "To provide and maintain a navy;" "To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;" "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof." According to my understanding of the Constitution, this short summary embraces every provision of the instrument that invests Congress with any power to act, immediately or remotely, upon the subject of invasion, insurrection, or domestic disturbance in a State. Let us now see what other provisions in relation to this subject have been made by the Constitution, and to what departments or officers of the Government they appertain : "The President," * * * * "before he enters upon the execution of his office, shall take the following oath or affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve protect, and defend the Constitution of the United States.'" "The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States." "He shall take care that the laws be faithfully executed." Those words are not many, but they are comprehensive and explicit, and, in my judgment, they are all that were necessary or intended to meet the great exigence that came upon the country in 1861. How and by whom is such an exigence to be met? What is the oath of you, sir, as a member of this body and of every member of each House? All of us swear to support the Constitution. May the Lord have mercy upon us for the manner in which some of us have disregarded that oath! What is the oath of the President? That he will faithfully execute the office of President of the United States, and will, to the best of his ability, preserve, protect, and defend the Constitution of the United States. The members of Congress are simply to support the Constitution; the President is to preserve, protect, and defend it. He is to fight for it. When it is assailed, it is his duty to wield all the military power with which the Constitution and the laws of Congress have intrusted him for its preservation, its protection, and its defense. If the execution of the laws is obstructed without force of arms, force of arms cannot be intervened to have them executed, or to aid in their execution. It is only when the authority of the Government and the due execution of its laws are resisted by arms that arms can be interposed for the purpose of putting down the resistance and enforcing the execution of the laws. And who is to interpose the arms? Not Congress. Congress has nothing to do with wielding the military power that may thus be properly invoked. Who is to do it? The President. That is his duty by the Constitution, made so by plain language. He is to execute the office of President of the United States faithfully; that is, to perform all the duties devolved upon him by the Constitution and laws. He shall take care that the laws be faithfully executed; and to do this, when it becomes necessary, he must apply and direct the military power of the United States. He is to preserve. protect, and defend the Constitution of the United States; and to do this, when it is assaulted by men in arms, he, as Commander-in-Chief, must repel the assault by the Army and Navy, and the militia of the States raised, provided, and called into the public service by laws passed by Congress. That is the aid which Congress is to afford him, and that is the only part which it can take in this grave business. The act of 1793 was the first that was enacted to carry out the provisions of the Constitution for suppressing insurrections, &c. It was found defective, and in 1795 another and a more complete act was passed. In 1861, after the insurrection had broken out, Congress took up the subject again and passed a more elaborate and probably a better considered law, in which the provisions of the act of 1795, so far as they related to the subject of

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insurrections, were repealed. I will read a clause from the law of July 29, 1861, drafted, as I understand, by the late Senator Collamer: "That whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President of the United States, to enforce by the ordinary course of judicial proceeding the laws of the United States within any State or Territory of the United States, it shall be lawful for the President of the United States to call forth the militia of any or all the States of the Union, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed." That is a most proper and constitutional provision. It limits itself to the occasions and the exigencies of resistance by force to the execution of the laws of the United States, or a rebellion, which is a great insurrection against the authority of the United States. Now, sir, the honorable Senator from Michigan says that Congress is the conqueror, and that the people of the rebel States who were subdued by our arms and who capitulated and acknowledged obedience to the authority and laws of the United States occupy the position of a conquered people; and as such are subject to Congress, the conqueror. Mr. HOWARD. If the Senator from Kentucky will pardon me for a very brief interruption, I should be glad to lay before the Senate a very high authority upon that particular point. Mr. DAVIS. You can do that at your leisure after I shall have concluded. Mr. HOWARD. It is no less an authority than Andrew Johnson, who adopted the principle in a deliberate speech made in this body. The PRESIDING FFICER, (Mr. RAMSEY in the chair.) The Senator from Kentucky, who is entitled to the floor, declines to yield. Mr. DAVIS. Mr. President, my principle is to support Andrew Johnson when he is right and to oppose him when he is wrong, and that is the principle upon which I practice in relation to all Presidents and all parties and all Administrations; but I will proceed. How can Congress be the conqueror of the southern States? Is Congress clothed by the Constitution with any military power? Not a particle. It is invested with the power to declare war, but not to declare war against a State or any portion of the people of the United States, but only against foreign nations. Such is the plain meaning of the Constitution and the ruling of the Supreme Court. That position is conceded by all American statesmen. The war power of Congress has no application whatever to the suppression of insurrection or rebellion, except merely to exercise the legislative power to raise and support armies, to provide a Navy, and to call forth the militia and to raise the necessary supplies to enable the President to suppress the insurrection and see that the laws are faithfully executed. That fulfills the whole power and duty of Congress in the suppression of insurrection and rebellion; the consummation of the work belongs to the President, and not by the authority of Congress, but the Constitution. I concede that when the United States is invaded, when a State or a portion of the people are in a state of insurrection, when there is such domestic violence in a State as requires the protection of the United States, to decide when the state of facts amount to either of those conditions does not appertain to the President as "Commander-in-Chief," and is nowhere given to him by the Constitution; yet he is invested with that high discretionary power. How, then, does he get it? By the act of Congress. First, by the act of 1793; second, by the act of 1795; and lastly, by the act of July, 1861, in the section which I have read. Whence the authority of Congress to invest the President with this power? Here it is in these few words of the Constitution: "Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution In the Government of the United States or any Department or officer thereof." Mr. President, these provisions of the Constitution and of the laws of Congress have been before the Supreme Court, and have been construed by the final arbiters, organized by the Constitution, after the maturest consideration. I will refer, first, to the case of Martin vs. Motley, 12 Wheaton. It came up to the Supreme Court from the State of New York. The President had made a call on the Governor of that State for a militia force. Martin had been enrolled and ordered by the proper military authority to report at the place of rendezvous, but

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failed. The powers of the President, the duties of subordinate military officers to obey his orders, and the effect upon the militiamen, all arose as questions in the case, and the court, in the opinion, say: "If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself is strongly fortified. The words are, 'whenever the United States shall be invaded or be in imminent danger of invasion, &c., it shall be lawful for the President, &c., to call forth such number of the militia, &c. as he may judge necessary to repel such invasion.'" That is a quotation from the law. Here is the reasoning of the court: "The power itself is confided to the Executive of the Union, to him who is, by the Constitution, 'the Commander-in-Chief of the militia, when called into the actual service of the United States,' whose duty it is to 'take care that the laws be faithfully executed,' and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for the purpose are in strict conformity with the provisions of the law, and it would seem to follow as a necessary consequence that every act done by a subordinate officer, in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders shall be given to carry the power into effect, and it cannot, therefore, be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the President, or for any right in subordinate officers to review his decision, and in effect defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts. And in the present case we are all of opinion that such is the true construction of the act of 1795. It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse." In precise accordance to the judgment of the Supreme Court in that case was its ruling in the case of Luther vs. Borden, which arose out of the Dorr rebellion in Rhode Island. I will read one or two short passages from that opinion. Speaking of the act of 1795, the court say: "By this act, the power of deciding whether the exigency had arisen upon which the Government of the United States is bound to interfere, is given to the President. He is to act upon the application of the Legislature or of the Executive." That is, when there is domestic violence in a State, as was the case then in Rhode Island. "And consequently he must determine what body of men constitute the Legislature, and who is the Governor, before he can act." This principle, as the honorable Senator from Massachusetts [Mr. Sumner] said some time ago, in relation to another matter, runs in several directions. It is an important principle. It has a multiform application; and it may receive other and more important applications in the course of events. I do not know that it will. I hope there will be no necessity for it. If there should be, I have no knowledge that it will be exercised; although it ought, and might be with the plainest sanction of the Constitution, and the highest considerations of duty and patriotism operating upon the President. "The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress." What was the decision of the President in that case? He decided that the old charter government of Rhode Island was the true and legitimate government of the State; that the Governor, under that charter government, was the true and legitimate executive Chief Magistrate of that State. He decided that the Dorr government was spurious; that the election of Door under it, and every attempt to set up and organize a government under the Dorr constitution in the State of Rhode Island was illegal, unconstitutional, void, a wrong, and an outrage upon the existing government, and authorized the existing government to put it and all of its supporters down by force of arms. The President in that case did not interfere by the actual march of troops into Rhode Island, but he declared his purpose to do so, and that declaration induced the insurgents and the Dorrites to submit. Here is what the court say on that point: "The interference of the President, therefore, by announcing his determination, was as effectual as if the militia had assembled under his orders. And it should be equally authoritative. For certainly no court

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of the United States, with a knowledge of this decision"— That he had determined to interfere simply— "would have been justified in recognizing the opposing party as the lawful government; or in treating as wrong-doers and insurgents the officers of the government which the President had recognized and was prepared to support by an armed force." Here is another point stated in this opinion which carries a truth, a principle with it, of which I have an application to make presently: "In the case of foreign nations, the Government acknowledged by the President is always recognized in the courts of justice. And this principle has been applied by the act of Congress to the sovereign States of the Union." Let ge